Just Books
civil rights
08/05/10
by Laurence Tribe
My long life in the relatively quiet groves of academe, in the tree-lined streets of Cambridge, Massachusetts, was a calm one compared to life inside the Beltway. The perspective from that privileged perch was shattered when I began to see the broader view from inside the Justice Department, a view that reaches into every nook and cranny of our country. In my new job as Senior Counselor for Access to Justice, I have come face to face with the anxiety and desperation of ordinary citizens, who look to our legal system for their fair share of decent treatment.
Only five months into the job, I still view with awe the sign over the door to my office that reads, “Access to Justice.” More than a few folks who have come to visit have paused to have their pictures taken – not with me, mind you, but with that sign. But even after these few months, my staff and I already sense the danger of unrealistic expectations. We worry, as do many expert observers, that the system is too badly broken in too many ways to be susceptible to any “quick fix,” our state and federal budgets too strained to provide the resources so desperately needed, injustice too deeply woven into the system’s very structure for piecemeal reforms to make much of a dent. Or is it?
Ours is supposed to be a system that levels the playing field by meting out justice without regard to wealth or class or race, a system that lives up to the promise emblazoned in marble on our Supreme Court, “EQUAL JUSTICE UNDER LAW.” But as we know all too well, far too many of our citizens find instead a system in which the deck is stacked in favor of those who already have the most: in favor of the wealthy and against those already disadvantaged or victimized by the more powerful. There’s no reason to mince words: Not only the poor but members of the shrinking middle class find a system that is confusing, difficult to navigate, challenging to the point of inaccessibility for anybody who can’t afford the best lawyers, and ridiculously expensive for those in a position to pay the going rate.
Consider the Burger family in Michigan, a state that permits non-judicial foreclosure. The Burgers bought a four-bedroom bungalow in 1997 for just under $39,000. In January 2009, they inadvertently sent a money order that was 7 cents short of what they owed, and they were late making February’s payment as well. They caught up by April, which was amazing considering that they lost their 10-month-old daughter in a household accident that same month. According to the family, the bank sought to foreclose anyway, giving them a choice: Pay $8,390 to reinstate the mortgage or lose their home. The Burgers didn’t have the money, couldn’t afford a lawyer, and given Michigan’s laws weren’t afforded any court intervention or oversight, so they lost the only house that their four living children, all 12 years old and younger, had ever known.
But the unredeemed imbalance of power and wealth are not the only viruses infecting our legal system. Equally detrimental, though less visible, is the hydra-headed monster of too many people to be served effectively and – for lack of a better word to describe it – the punitive urge, an appetite for imprisonment that ignores the veritable mountain of evidence which shows that alternatives to incarceration are often more effective at reducing recidivism--while also less costly. All too often, the systems that rely on lengthy incarceration as the only available criminal sanction suffer from crushing caseloads and an inability or, I hate to say, unwillingness to provide the legal assistance needed to provide meaningful, adequate defense. Though neither of these forces necessarily originates from any ill intent, their combination creates waste, havoc, and confusion and leaves the system weakened and the participants on both sides of the bench disillusioned and discouraged.
Nobody who works within the legal system enjoys confronting these problems – they cast a dark shadow over a system in which we deeply believe and to which we have devoted our careers. But confront them we must if we are to combat them and redress their pernicious effects. More than 95 percent of all cases in this country are filed in state courts. Just to put things into perspective, it helps to recall that slightly under 280,000 civil cases of all kinds were commenced in federal district courts in 2007 – compared to nearly 18 million civil cases in the courts of our 50 states. The federal system saw over 66,000 new criminal cases filed in 2007, a substantial number to be sure, but nowhere near the 21 million plus that originated in state courts.
In the face of this staggering burden, the problems facing our state judicial systems can only be described as deplorable. The court systems in 28 states had hiring freezes in FY 2010, 13 states froze court staff salaries, six states mandated court furloughs, six states closed courtrooms – one day each month for all California courts. Los Angeles County alone has lost over $130 million of its court budget, and hundreds and even thousands of court employees are being laid off from California to Florida to New Hampshire. And judicial pay, adjusted for inflation, has fallen nearly 24 percent over the past 40 years while the average U.S. worker’s wages have risen nearly 18 percent.
Because of bulging criminal dockets and huge pro se backlogs, all made worse by the faltering economy, it’s becoming increasingly difficult for business litigants and others who are embroiled in civil disputes ranging from consumer fraud to family matters to get courtrooms for trial or to have trials, especially jury trials, scheduled in a timely way – often, they wait years to get their day in court. It was Clause 40 of Magna Carta that proclaimed, "To no one will we sell, to no one will we refuse or delay, right or justice." Justice that must depend on the purse, or justice so long delayed that it is in essence denied, does not deserve the name.
For the privileged litigants who can afford it, the natural response to a denial of justice in the public courtrooms of our nation is to take their business to private judges and mediators, operating outside the watchful gaze of the public and beyond the effective reach of the rule of law. The harm that results from that private response is experienced as well in the public sphere, where adjudication conducted out of the public’s sight mystifies instead of educating, depriving democracy of one of its essential wellsprings, that of seeing justice done.
For those litigants who cannot afford that private alternative, the natural response to a denial of public justice is more troublesome still. They must either suffer in alienated silence or take the law into their own hands. Judy Norman, the North Carolina woman whose story and trial are studied by many first-year students in their criminal law courses, tragically exemplifies that response. For 25 years, Ms. Norman was psychologically and physically abused, beaten by her husband, and forced into prostitution. The state rebuffed her attempts to seek counseling and welfare benefits, and the police refused to take action unless she filed a formal complaint, which she was too afraid to do. Because she thought her husband was “invulnerable to the law,” she finally shot and killed him in his sleep.
The human rights activist Gary Haugen, founder and director of International Justice Mission, has documented the way in which wealthy and powerful elites in third world countries with dysfunctional public justice systems often circumvent those systems with workarounds that submit their controversies to private dispute resolution, leaving the poor, who of course can afford no such recourse, to depend on the clogged and at times corrupt public courts. That leads to a vicious cycle of cynicism and disaffection in which the system’s democratic legitimacy, the very foundation of its capacity to articulate and enforce the rule of law, disintegrates. And that in turn leads increasing numbers to flout the law, to resort to self-help, or to give up altogether, eroding the traditional claim of the judicial branch to a share of public resources sufficient to perform its mission with competence and integrity. In the meantime, the powerful constituencies that once treated the public courts as their arbiters of last resort develop a diminishing stake in keeping the public judicial system afloat.
I hasten to add that this picture of what sometimes happens abroad stands in stark contrast to the judicial systems over which you preside. We have ample reason to be proud of the integrity and efficacy of American courts, both state and federal. But to say that is not to condone indifference to the early warnings of disintegration.
The magnitude of the problem tempts one to reach for sweeping solutions in some unifying vision of “access to justice” writ large, but the diverse and multifaceted character of the problem resists reduction to any grand and fully coherent theme conveniently captured in a simple slogan. Once one recognizes the perils of rigidly idealistic thinking – something that has from time to time plagued everyone in our “access to justice” office – one comes to a recognition that what is perhaps needed more than an inspiring but abstract and utopian call for a thousand-fold increase in funding is a series of tangible, achievable reforms that will make state courts better at what they do and more engaged in making law and legal remedies accessible to all.
Before I propose three sets of tangible, achievable reforms, let me address an overriding concern that many express with the very idea of active judicial leadership. It is that judges should be neutrals, not participants. They should be objective. They need to remain above the fray. People don’t agree on a definition of “judicial activism” but, in a riff on Potter Stewart’s definition of hard core pornography, they “know it when they see it.” And, if they affix that label to it, they know they don’t like it. But whatever one’s notion of impermissible approaches to judging, there is a basic and often ignored difference between judicial neutrality and judicial inactivity, between judicial objectivity and judicial passivity. Perhaps the greatest image we can conjure of a wise judge is that of Solomon. We all remember his creative pre-DNA-test solution to the problem of adjudicating the contested issue of maternity between two women making competing parental claims to the same infant. The wise king’s proposed solution, which he sprang on the women when he suggested splitting the baby in two while he watched the reactions of both claimants to motherhood, was the very essence of neutrality and objectivity. But it was hardly passive! It was as active as all get-out. Solomon’s wisdom sprang from making justice an active verb.
One inspiring example of the “good” judicial activism is taking place in Philadelphia, where a trial judge named Annette Rizzo launched an innovative mortgage mediation project. Judge Rizzo was initially asked by a particularly progressive sheriff to issue an area-wide moratorium on foreclosure sales, which were ravaging Philadelphia neighborhoods. Judge Rizzo, taking a leaf out of John Marshall’s book, declined to issue that specific relief – which would undoubtedly have garnered her the “bad” judicial activist label – and instead took the opportunity literally to restructure the foreclosure system in Philadelphia. She issued an order that no foreclosure sale could win judicial approval before the lender had at least entered into good-faith mediation with the homeowner, aided by a state-funded housing counselor. The mayor’s office got on board, the relevant stakeholders (including the lenders) offered input, and the program was off and running. My staff and I paid a visit to Judge Rizzo’s courtroom and witnessed the program, which has successfully kept hundreds of families in their homes and permitted many others to achieve more dignified and graceful exits than would otherwise have been possible.
Important reform efforts have also been initiated by state supreme court justices, as with the significant indigent defense reform effort spurred by the Nevada Supreme Court, which issued an order in 2008 calling for a completely state-funded Public Defender system and a permanent statewide commission on indigent defense. Although the Nevada reform effort is ongoing and there is still much work to be done, that state’s high court heroically chose to address systemic deficiencies in its system for fulfilling the obligation imposed by the Sixth Amendment under Gideon – and the promise of equal justice made by Gideon – without being asked to do so in a specific case. Of course, once asked to address the question of systemic deprivation of the protections that Gideon affords, it takes just as heroic a court to answer the call, as the New York Court of Appeals recently did under the visionary leadership of its Chief, Jonathan Lippman, in permitting the plaintiffs’ lawsuit to go forward in Hurrell-Harring v. State of New York.
I would urge every state’s highest court, led by every state’s chief justice, to establish an exploratory committee or task force with the goal of surveying the performance and evaluating the adequacy of the way your state is discharging its federal constitutional duty under Gideon. Judicial leadership of the sort shown in Nevada and New York and elsewhere is necessary if Gideon’s promise is to become more than what Robert Jackson once called a “promise to the ear to be broken to the hope, like a munificent bequest in a pauper’s will.”
Now, let me turn to the first of three areas of possible reform: juvenile justice. Let’s make sure that what happened in Luzerne County, Pennsylvania between 2003 and 2008 never happens again. As many readers know, here thousands of kids waived counsel and accepted pleas – in a system designed so that judges could receive kickbacks for placing children in a residential facility. The complaint alleged that none of the youth without counsel who appeared before a judge and pleaded guilty even had a colloquy about the waiver of counsel or about pleading guilty. They went to a hearing and in a matter of moments disappeared in shackles and handcuffs, for crimes as minor as stealing a four-ounce jar of nutmeg. Now of course the Pennsylvania Supreme Court vacated some 6,500 adjudications and consent decrees, expunged the convictions, and dismissed all cases with prejudice.
The primary goal of the juveniles and their attorneys in Luzerne County was relief in their individual cases, but state court judges can decide to use the lessons from that case to institute systemic change, just as Annette Rizzo took it upon herself to do in Philadelphia.
When we were juveniles, there was an ethos that everyone was out to help the kids, so issues like waiver of counsel weren’t really important. Today, confronted with situations like Luzerne County, we know better. The consequences of juvenile adjudications are serious and long term; the lack of representation can reshape a child’s entire life. Being found guilty can mean expulsion from school, exclusion from the job market, eviction from public housing, and exclusion from the opportunity to enlist in the military. It can affect immigration status. This is serious stuff.
And because it is so very serious, it’s critical that our state chief justices play a major leadership role. They can begin by protecting the right to counsel. The best way to do that is to prohibit the judicial acceptance of counsel waivers in your state by juveniles who have not at least received the advice of an attorney about their options and about the consequences of waiving such an important right. Many state supreme courts have adopted such a rule, including several in the past few years. A few states do not accept a waiver of counsel from juveniles under any circumstances. Every jurisdiction in the country should adopt a rule that at the very least requires consultation with an attorney prior to waiver of counsel.
We know from careful national studies that juveniles who lack counsel are much more likely to plead guilty without offering any defense or mitigating evidence. And without any credible defense, those young people are far more likely to end up in detention or incarceration, where they’re much more likely to be exposed to assault or sexual abuse, much more vulnerable to suicide, and far more likely to commit further crimes after their release. You, as our chief justices, can make a difference. Every child in delinquency proceedings should have access to justice via a right to counsel at every important step of the way: before a judicial determination regarding detention, and during probation interviews, pre-trial motions and hearings, adjudications and dispositions, determination of placement, and appeals.
Beyond waiver, it is time for the states to focus on the entire juvenile system, which has changed so much and yet receives so little systematic attention. We should have Blue Ribbon Commission on juvenile cases in every state, to find out the facts on waiver of counsel, on youth charged in adult court either directly or after transfer from juvenile proceedings, on plea and caseload rates, the qualifications of youth counsel, the collateral consequences for youth of delinquency adjudications and adult criminal convictions, and fees. Fees are important. Juveniles and their families – often poor families – often have to pay for detention, restitution, and victim funds. The National Juvenile Defender Center told our office about a 19-year-old college student who was brought into court in handcuffs because she had not paid fees that had been assessed against her when she was a child. She was held until she agreed to a payment plan.
Florida, Massachusetts, New York, and Washington, have eliminated the indiscriminate shackling of youth in delinquency proceedings. And the rest of the states should follow suit. Now is the time.
A second area in which we can make a difference involves the removal of artificial and often enormously counterproductive obstacles to pro bono representation for limited purposes (so-called “unbundled representation”), pro bono lawyering by attorneys licensed in jurisdictions other than your own, and more meaningful self-representation.
No substantial improvement in the delivery of needed civil legal services is likely unless we can find a way to stimulate more – and better designed and supervised – pro bono activity. It is difficult enough to find capable, well-trained lawyers who are willing to dedicate the time to significant pro bono work, so we simply cannot afford to cling to antiquated rules that, in a misguided application of ethical norms, artificially inhibit willing attorneys’ ability to actually perform pro bono services ably and with integrity.
In particular, there are several rules we should support:
Number One: all states should permit discrete task representation. Roughly 40 states have adopted the ABA’s Model Rule 1.2(c), or something similar, which permits pro bono attorneys to enter into representation agreements of expressly limited scope. These rules allow such attorneys to perform what are often short and simple tasks without taking on the duties and limitations that attend more classic full-scale attorney-client relationships. And because rules like 1.2(c) permit discrete task representation only where reasonable under the circumstances and after informed consent by the client, there is little or no downside.
Number Two: we should sensibly relax conflict rules for pro bono attorneys. Historically, too many well-intentioned and ethically alert attorneys were prevented from rendering needed services—even when those services were as simple as filling out a request for mediation regarding a client’s pending foreclosure—just because their firms had represented some financial or other institution on a vaguely related matter that had an attenuated theoretical interest in the issue at hand. Courts should not require pro bono attorneys who are providing short-term services with no expectation of continuing representation to screen systematically for such conflicts. Indeed, some states have gone even further – Washington, for example, permits pro bono attorneys to engage in short-term pro bono representation, subject to certain reasonable safeguards, even when they know of a lurking conflict.
Number Three: we should examine state rules of practice as they impact pro se litigants. I appreciate the difficulties that folks who can’t afford lawyers pose to states dockets and courtrooms, but as we embrace technology and form simplification we’ll be in dire need of clear rules that govern how court staff and non-lawyers may guide prospective litigants through the process of filling out self-help forms. I realize that unauthorized practice of law rules aren’t a popular topic of conversation around courthouse water coolers, but we must not inhibit the ability of pro se litigants to seek ministerial help in addressing issues as critical as child custody and housing simply because our UPL rules have not caught up with our reality.
In addition to the juvenile-justice and pro bono reforms, a third initiative that I urge is the creation – and, for those 24 states (and the District of Columbia) that have already created it, the care and feeding – of an Access to Justice Commission, whether by that or some other name, that embodies a sustainable institutional commitment to grading the state’s legal system in terms of how well or poorly it is delivering justice to the state’s people. Such commissions, typically created by supreme court rule or order, are deliberately designed to include judges, bar members, civil legal aid providers, representatives of law schools and, in some instances, members of the state’s executive and legislative branches. And they have achieved some remarkable results.
In California, the Access to Justice Commission secured an annual $10 million appropriation from the state legislature for civil legal services, and deserves much of the credit for the state legislature’s enactment of the groundbreaking Sargent Shriver Civil Counsel Act, which establishes civil Gideon pilot projects that will begin next year.
In Washington State, the access-to-justice commission helped establish the Office of Civil Legal Aid in 2006 as an independent agency within the judicial branch, and in addition to increasing civil legal aid from $6.6 million in 2005 to over $11 million just two years later, it played a key role in implementing rule changes to facilitate unbundled legal services and increase cy pres funding for legal aid.
The Texas Access to Justice Commission has approached funding issues creatively and, in addition to securing $2.5 million from the Attorney General’s budget for legal services for victims of crime in 2001, has helped funnel to legal aid offices fees collected from Texas bar members and from out-of-state lawyers appearing pro hac vice. The establishment of statewide Access to Justice Commissions has been called one of the most important justice-related developments in the past decade, and my office fully agrees.
The unifying theme of the three categories of action I am urging is not to be found in any ethereal abstraction. It is, quite simply, that these steps would manifestly improve access to justice in your states, and, they are demonstrably achievable.
And, if the search for a universal solvent for the intractable problems of justice can be paralyzing, the commitment to these achievable reforms can be empowering. So please don’t take the view that the three categories of changes I’ve outlined are so incremental, the success I’m aiming toward so far removed in time, that there’s no point in rushing to get started. To the contrary, the longer it takes to get there, the more crucial it is to begin without delay. As New Orleans Mayor Mitch Landrieu said in his first State of City address earlier this month, “There’s an old saying that the best time to plant an oak tree was 30 years ago. The second best time is now.”
I end with this thought: The trajectory of the moral universe will indeed bend toward justice, as Martin Luther King famously dreamed, only if we act to make the dream real. Unable to realize that goal in a single leap, we must not despair of realizing it step by step. The benefits of each step may seem small – but, as Richard Feynman once described the trajectory of the photon, each little arrow bent to a particular degree becomes in the aggregate a ray at the speed of light, lighting everything in its path. That ray can light our nation and the world if we all do our part.
Laurence Tribe is the Carl M. Loeb University Professor at Harvard University, and is Senior Counselor for Access to Justice in the Department of Justice.
This article was adapted, with permission, from Professor Tribe's Keynote Remarks at the Annual Conference of Chief Justices, July 26, 2010
Tags: civil rights, democracy, justice, Larry Tribe
06/02/10
by Lorraine Adams
Adams, a Pulitzer Prize winning former Washington Post reporter, looks at what happens when innocents are swept up in counter-terror efforts.
Since Times Square bomber Faisal Shahzad turned out to be a Pakistani native, it’s been a trying season for Muslim immigrants—especially those from the would-be terrorist’ s home country. The Feds have told Pakistan leaders “Check your family and staff for terrorist ties.” Terrorists are “hiding within our midst,” warned White House Counter-terrorism adviser John Brennan. Last week, and no doubt in the coming weeks too, we can expect a big spike in the number of Pakistanis arrested for immigration violations and related charges.
Sounds reasonable, doesn’t it? For the guilty, yes. For those who are neither guilty nor entirely innocent, the aftereffects will last—and last.
1999 was a similar season — for Algerians. Customs agents discovered explosives in the trunk of a rental car at the end of that year and arrested the driver, Ahmed Ressam, an Algerian as he tried to cross the Canadian border into Seattle. The country was in a state of heightened alert as turn of the millennium was but two weeks away, and, after Ressam’s arrest, government officials began detaining Algerians across the United States, almost all on immigration charges.
One of those then detained was Aziz Ouali, a 26-year-old East Boston dishwasher. Hunted by terrorists in his own country during the brutal Algerian civil war of the 1990s that left over a 100,000 civilians massacred, Aziz stowed away on a natural gas tanker from his hometown of Arzew, Algeria in 1997. He spent 52 days in the hold, and then dove into Boston harbor and swam ashore. Eventually he found other Arzew stowaways to live with, and one of them, Abdelghani Meskini, had a cell phone number that was found in the pocket of Ressam, the Algerian with the explosives.
As a reporter for The Washington Post, I wrote about Meskini in a Sunday magazine piece that ran in June 2001. I wanted the article to include Aziz’s story—an account of a young Muslim Arab who didn’t become a terrorist—but my editor at the time found his tale too ambiguous and thus too inconsequential to warrant more than a passing reference.
Frustrated after twenty years of writing simple-to-grasp articles despite the fact that my reporting often uncovered tangles of conflicting facts, I quit. I was in New York City three months later, when Saudi terrorists crashed into the World Trade Center towers, and killed the first boy I’d ever kissed along with 2,752 other people.
In the days afterwards, I sat down to write what would become a novel about Aziz. In 2004, Knopf published it to critical acclaim. Aziz, whose English wasn’t strong enough to read Harbor, never knew of it. His wife, a Boston secretary named Kim Sullivan, did, but she said the period the novel drew upon was too distressing to her husband and she felt it better not to mention it to him.
Today, Aziz sits in a Plymouth County jail in Massachusetts. He’s been there since last August. Aziz isn’t allowed phone calls, so I can’t talk to him. A few weeks ago, Kim, Aziz’s wife of nine-years, called. She was distraught. Ten years after Aziz’s arrest on Jan. 4, 2000, Karen-Anne Haydon, Boston Field Office Director of the U.S. Citizenship and Immigration Services, had ordered Aziz’s deportation. To stay with him, Kim, a blue-eyed, blond and Irish Catholic woman who pronounces Boston as “Bahston,” would have to move to Algeria, a country beset with Islamist insurgency and anti-American hostility. Her parents, in their seventies, were a wreck.
Aziz’s story today is, once again, a phantasmagoria of complication. There are failings on all sides.
There’s the government, which granted conditional resident status in May 2002, but never sent Aziz the green card he was entitled to. He applied, per instructions, for a replacement card, but for four years, officials stamped his passport so he could travel in and out of the United States to see his parents, and told him not to worry. Indeed, if the card had simply arrived, Aziz would probably not be facing deportation.
There’s his lawyer, Jerry Friedman, who never filed a required form I-751 asking that the conditions on Aziz’s resident status be removed, an oversight he says he regrets, but can’t realistically remedy. “I feel somewhat responsible,” he told me over the phone last week. “I should have at some point picked up on the fact that he should have filed. But I can’t keep track of when and where all my clients have to file every last item.” Friedman’s right: the immigration bureaucracy is a morass of filings, forms and deadlines. But, the fact remains: if Friedman had filed the form, Aziz would not be eligible for deportation.
Finally, there’s Aziz’s record. When he landed in America, he was arrested twice, both times for shoplifting a pair of sneakers--the first time in the months right after he swam ashore, and a year later, in 1998. He stayed in jail a night each time, and with no English and little understanding of the criminal justice system, believed he’d paid his debt to society. As a result, he didn’t mention the arrests when he applied for permanent resident status in 2001. The government, which had fingerprinted him numerous times and scoured his criminal record, didn’t find the misdemeanor arrests, both of which were ultimately dismissed. In her decision, however, Field Office Director Hayden found that Aziz’s failure to disclose the prior misdemeanor charges part of “a flagrant disregard for the laws of the United States.” The government did discover the arrests—but not until December 2005. It was then officials told Aziz he’d never filed the I-751 form. Plus: deportation proceedings were initiated at that point, but only because of the unfiled I-751 form. Kim and Aziz filed the form in 2006. But they needed $2000 to file it and the raft of other forms they needed to re-file. Aziz’s work as a housepainter had dried up, and out of work, he accompanied an old Arzew acquaintance on a shoplifting expedition to a Maine outlet store.
He was found guilty of criminal trespass and spent 21 days in a York jail. Shortly after, Kim and Aziz fought bitterly—and he pushed her. She got a ten-day restraining order and he slept in a motel for two nights. “I think he was frustrated,” she told me. “And he lost it and blamed me. “This is your country, these are your laws,” he was saying. We were both hot-tempered and he didn’t hurt me. I wish I’d not done it.” The trespassing conviction and Kim’s order figured in Hayden’s deportation decision.
Plenty of blame to go around, right? Well, it would take another novel to adequately untangle what landed Aziz in jail seven months ago and sped the deportation proceedings.
After the shoplifting fiasco, Aziz joined a company to make ends meet. Last summer, the economy in free all, he was laid off. The boss told him he was eligible for unemployment. The first two checks, about $180 every two weeks, arrived; when the third didn’t, Aziz went to the unemployment office to inquire. He brought folders of his now voluminous immigration records; Kim knew he would be asked to prove his green card status. The woman at the counter studied the documents. She was about to give Aziz a check when her supervisor interceded, took Aziz lost check claim form and, Kim told me, “”ripped it up in his face.” Aziz asked her, “What are you doing?” She said, “You don’t have a green card. Get one and come back.” After all the years of waiting for a green card, Aziz made a fatal error. As Kim tells it, he said, “Do you know what I’ve been going through to get a green card? I have a green card; it just never got mailed to me. I’ve been here ten years working, ten years paying taxes and here’s the order from the judge. What do you want me to do? Do you want me to go to the JFK building and get a gun and make them give me a green card?”
Aziz left the unemployment office. Senator Kennedy had just died and Boston was swarming with federal agents; as the country had been at the turn of the millennium ten years earlier, Boston was on high alert. Two U.S. Homeland Security federal protective service agents turned up Aziz’s parents’ house in Winthrop two days later. They were looking for Aziz. Kim’s mother called the couple, and Aziz spoke to the agents on the phone. Kim said he got off and said everything was fine. But the agents kept her parents’ house under surveillance that night. The next day her mother and father started out, as they did every weekend, for a drive to their New Hampshire cottage. Agents pulled them over in East Boston. “My mother called me,” Kim explained. “She was in a real dither. My father was out of his mind.” Aziz and Kim drove to the parking lot where her parents were detained and met the agents. Kim says everyone was friendly. The agents frisked Aziz, searched his truck and discussed his immigration problems.
“Everything seemed cool,” Kim recalled. “All of a sudden a white Murano comes flying into the parking lot and four guys come out. They cuffed Aziz and took him away.”
Aziz has been at Plymouth County Correctional Facility ever since. He still has time to appeal last month’s deportation ruling, but Kim says he’s lost heart, and fears he won’t give her the go-ahead to keep trying.
“It’s a very sad case,” Aziz’s lawyer told me.” I keep hoping the judge is going to wake up in the middle of the night like I do and say, “I really screwed up this case.””
Lorraine Adams, a Pulitzer Prize winning former Washington Post reporter is the author of two novels, Harbor, and The Room and the Chair, Knopf, February 2010.
Tags: Aziz Ouali, civil rights, justice, Lorraine Adams, Summary Judgment
06/02/10
By Amy Bach
At one time, Wilbert Rideau was America’s most famous inmate. While serving a life sentence for murder in Louisiana, Rideau became a journalist and editor of the prison magazine, The Angolite. He won honors for stories that exposed systemic brutality of prison life; in one issue, Rideau printed post-execution pictures of a deceased inmate so horrifying they prompted the state to switch from the electric chair to lethal injection. He appeared on Nightline and he worked on a film that was nominated for an Academy Award. And Life magazine ran a story and called him “the most rehabilitated man in America.”
But the more successful he became, the harder citizens in the Lake Charles community fought to oppose his parole. I couldn’t figure out why Rideau, unlike others who’d committed similar crimes, stirred such fierce community sentiment. I visited Lake Charles in 2002 and wrote a The Nation magazine piece about Rideau and why he, unlike others who committed a violent crime in the 1960s, couldn’t get past the parole board.
Clearly race played a big part in keeping Rideau behind bars. Rideau’s victim was white -- and a woman. The prosecutors painted Rideau as a sociopath lacking the capacity for empathy. Sure, they conceded, Rideau was smart and savvy. But what type of man would rob a bank, line up his three hostages, shoot them execution-style, and then go on to slash one woman’s throat to the point of decapitation?
I
tried to get Rideau’s version of the crime he committed and interviewed him several times on the phone. Rideau said he couldn’t share any details. It would hurt his case, which was then set for trial, for the fourth time, in Lake Charles, Louisiana.
I wrote my piece without Rideau’s side of the story. But I always wondered about him. He was philosophical on the phone. And I wanted to hear his version of what happened on the night of the murder. When In the Place of Justice arrived, I tore into it. Was Rideau a sociopath? Or was Lake Charles over-punishing him for the color of his skin and his newfound success?
Certainly Rideau is, as the prosecutors said, savvy. As Rideau tells it, prison provided an excellent venue in which to test his writing, cunning, and political abilities. It is fascinating to read as he gains the trust and it seems genuine affection from a rich range of people including a federal judge, fellow inmates and many journalists. He acquires power in a context of utter subjugation.
The heroes of this book are, surprisingly and in large part, prison wardens – people like C. Paul Phelps who, according to Rideau, tap him to educate him about the prison system. “You’ve demonstrated in your writing that you understand this world better than most,” Phelps says to him in one of many accolades Rideau describes. Warden Phelps’ trust prevents Rideau from launching a plan to escape. It also results in a complete lack of censorship, which becomes a metaphor for freedom. Another warden, Ross Maggio, Jr., takes over when Phelps is promoted. Rideau continues to flourish and becomes, as he says, a “kind of an unofficial ombudsman for the prison, solving many inmate problems through low-level prison officials.” Rideau advocates for the mentally ill who are given arduous fieldwork; as result of Rideau’s protests, these inmates are relieved of their labor. “Unlike the lives of those who labored at difficult or mindless jobs, mine was determined rather by the events, intrigues, and problems of the day.”
The inner maneuverings of prison life – the slippery dealings that govern an unruly population: this is what interests Rideau most. In the Place of Justice reads, at times, like a business memoir. Rideau recounts, for example, the way in which he created an all black newsmagazine in prison. And, after prison officials offer him a job editing The Angolite, a historically white publication, Rideau chose instead to serve as the editor’s underling rather than shift the power structure too quickly. (Ultimately, of course, Rideau, took over).
Rideau’s chronicle is peppered with excerpts from his own writing. And Rideau can really write. I re-read one section about witnessing a rape again. I won’t forget it.
What the book is not is a revelation of the process by which a troubled man comes to grips with what he has done. One could easily imagine the book starting out with an expression of remorse. Rideau begins instead with the words “Kill that nigger,” words troopers used to excite dogs that pursued Rideau after the murder. The opening words set the tone for a book about a racist community which convicted Rideau of cold-blooded murder (a crime of intent) rather than manslaughter (a crime committed in the heat of passion) and carried a lesser, capped sentence.
On his side were the nation’s greatest attorneys, including Johnny Cochran who appears in Lake Charles as a surprise member of team, and George Kendall, an endlessly creative advocate. At trial, the defense team says Rideau was an impulsive and confused teenager who’d grown up in racially oppressive community. In 1961, standing and waiting for a bus in Lake Charles was enough to incite abuse and threats from white passerby. Rideau decided to rob the bank so he could escape Lake Charles; he ended up with three hostages whom, he said, he hoped to release in the country side; but they tried to flee, so he panicked, and shot haphazardly at them. Rideau says that when one of the victims, Julia Ferguson roused herself after she’d fallen to the ground, “I ran to her and I stabbed her.” Autopsy photos make it clear the stabbing was not a decapitation but a one-inch cut. “There was no rhyme or reason for what I did,” Rideau testified. “But I was scared to death.”
The jury found Rideau’s story compelling and found him guilty of manslaughter, not murder. Rideau had already served the maximum sentence for manslaughter – 21 years – more than twice over. He was released in 2005 on Martin Luther King’s birthday.
Throughout the book, Rideau voices remorse for the family of the woman he killed; often, however, he mentions remorse in the context of his own destruction, his own losses. It is not until the very end when he moves in with his girlfriend (now wife) Linda LaBranche, a Shakespearean scholar who becomes his life-saving paralegal, that Rideau evinces any real awareness of what victim Julia Ferguson’s family must have suffered. Rideau writes that when Linda’s cat dies she is “beyond the consolation of human words of kindness. Grief and loss define her. I think back forty-five years to the suffering, the sorrow I inflicted on Julia Ferguson’s loved ones and ask God, again, to forgive me.” It’s almost as if – until this moment – he hadn’t had a glimpse of what it meant to lose a child.
But maybe this is the point. When we treat people as if they have no humanity, they remain in war-mode, unable to truly bond with others. Or appreciate anyone’s heartbreak but his own. The miracle is that people do change in such an undignified context. It’s a lesson “free” people often forget. Even in prison, things change. So do people. Wilbert Rideau’s story reminds us of this in a most remarkable way.
Amy Bach’s book Ordinary Injustice: How America Holds Court (Metropolitan) was awarded the Robert F. Kennedy Book Award in 2010.
Tags: Amy Bach, civil rights, crime, In the Place of Justice, incarceration, Prison reform, Wilbert Rideau, Book Briefs
04/22/10
The Student Non-Violent Coordinating Committee (SNCC) celebrated its 50th reunion last weekend. SNCC played a major role in the sit-ins, freedom rides, voter registration drives and marches that defined the American Civil Rights movement.
Pulitzer-Prize winning historian Taylor Branch says SNCC’s role in shaping America is as essential as that of the Founding Fathers. He reports from the conference.
interviewed by Susan Lehman
Susan Lehman: John Lewis, Julian Bond, Charles Cobb, Ruby Sales, Dave Dennis and other SNCC veterans gathered at Shaw University last weekend. What most surprised you about the 50th Anniversary conference?
Taylor Branch: What was most surprising was how many people showed up. SNCC people are notoriously argumentative. They are dying out. They are scattered all over the place. And yet, I don’t know the precise number, but it seemed to me there were more than a thousand people there.
SL: How do you explain the big turnout?
TB: There is a hunger for what is fundamental. A lot of people think our national politics is out of whack. SNCC addressed problems that no one thought could be solved, and risked their lives doing it. They know they deserve credit for this. And I think they are alarmed about what is happening in the country. Apart from all this, there was probably a sense that for a lot of them, this is their last shot to get together with people they were bosom buddies with 50 years ago. If it’s a 50th, and you miss it, you can’t plausibly say, “Hmm, I’ll skip this one and go to the 60th!
SL: How would you characterize SNCC’s legacy?
TB: SNCC played a far larger and more positive role in American history than is commonly appreciated. Correctly viewed -- and historically viewed -- the SNCC people shoved into motion an awful lot of freedoms that changed the country in fundamental ways we take for granted today. This extends far beyond eliminating segregation.
SNCC helped end -- literally -- the spirit of terror in a whole region of the country where people were afraid in a meeting room or a living room, or a downtown place that had any mixed presence. Doing so made people’s hands sweat. Because violence was ever present. People were getting beaten up, killed and insulted and there was a lot of hatred running through the land. SNCC’s witness eliminated this and also changed the partisan structure of politics in the whole country.
By winning the right to vote for black people, SNCC helped create the two-party South. It also helped create – or stimulate – prosperity in the South, which was impossible while the South was gnarled up enforcing segregation. The region was not fit for major-league sports teams, then, as soon as segregation was eliminated, sports teams – the Atlanta Braves and Miami Dolphins teams sprouted up, and the Sun Belt was born. There were all kinds of blessings for lots of people. And not just black and white people, but for women and the disabled. The women’s movement and a whole host of movements that followed came out of a fundamental struggle over questions about what equal citizenship means, what the role of politics is, and the responsibility of every student.
Properly viewed – and history will one day see it this way – the Civil Rights movement in general, and SNCC people as the young shock troops, playing the same role as the Founding Fathers did. They confronted systems of hierarchy and oppression, and set into motion a new politics of equal citizenship that benefited everybody.
On the uses of nonviolence
SL: What can be learned from SNCC’s successes in eliminating racial desegregation?
TB: The overwhelming lesson is that they grounded themselves in nonviolence and in the notion that people will respond to the moral values of equal citizenship and democracy and basic religious morality, if it’s dramatized sufficiently. And they discovered a kind of nuclear energy in nonviolent witness from the sit-ins to the voting rights era. That’s a pretty big discovery.
SL: Is there anything in contemporary American political life that suggests nonviolence could be as powerful a force now as it was during the Civil Rights Movement?
TB: All political agitation is a form of nonviolence and political debate will win out in the end. But I don’t see any contagious movements of nonviolence. One of my biggest complaints when I got to universities is that no one is studying nonviolence. Here you had a movement that came out from the weakest and most invisible segment of society in civil rights; it was a movement that adopted nonviolence and really shoved society -- against its own will -- in a direction of profound and beneficial reform. Yet nonviolence isn’t studied. It’s a travesty that you can go on university campuses in the politics department and find people writing dissertations on minor attack ads in a campaign but not studying something as sweeping as the changes eight-year-old girls wrought on the national psyche by walking in front of dogs and fire hoses. This is a pretty remarkable thing. We are the oldest experimental democracy, and whole idea of democracy is to settle disagreements by vote instead of the sword. The vote -- as Dr. King used to say -- is an act of nonviolence. It’s not a totally marginal issue.
SL: Speaking of voting and marginalization -- If patterns of felony disenfranchisement persist, we’ll have a higher level of disenfranchisement among African Americans in a few years, than we did at the time the Voting Rights Act passed.
TB: This is a political issue that needs to be addressed. Certainly the direction of American history from the inception has been to widen the franchise, not to narrow it. If we are actually narrowing it in a significant or politically important way, that is a turn backwards in history and we should be very skeptical and watchful about that.
SL: Attorney General Eric Holder delivered the keynote address at the SNCC conference. What role did government play in SNCC’s understanding of the path to justice?
TB: This was an issue of tension between SNCC and Dr. King. Dr. King always tried to knit together the pressure from the movement with results through politics. He was always looking for way to outlaw segregation and secure voting rights, legally. The legal part mattered. King tried to keep the movement together, and, at the same time, he negotiated with all three branches of government to move towards a voting rights law. For King, the whole purpose of movement was to gain some footholds in law. SNCC started that way, but was so disillusioned by the slow performance of the federal government -- and the fact that the federal government that had been so slow to move on Civil Rights was that it was starting the war in Vietnam -- that they disregarded the legal aspect. As an historical matter, I think this is why King lasted longer. SNCC came apart when it scorned the delicate task of keeping movement going and getting a political response.
SL: Was SNCC a racially-mixed organization?
TB: It was almost entirely black from 1960 – 1964. Those were important years. But then when they made the enormously controversial and philosophically fraught decision to bring 600 white college students down for freedom summer, a lot of them stayed on, and to a large degree threatened to swamp SNCC in inter-racialism. It was not smooth. Part of the inner struggle of SNCC to this day was they professed to be above the race issue, but in the crucible of risk and trying to work together across unfamiliar cultures, there was a lot of friction. It was controversial at this reunion to use the symbol of white and black hands clasped, which was SNCC’s original symbol. The symbol was anachronistic. In the end, SNCC ended up being an all-black organization. The reunion was about 90% black.
SL: You have written about the way history and myth-making impede progress. Could you say a bit about how this happens?
TB: Race is a powerful engine of dangerous myth in American history. To some degree, it is today: a lot of the Tea Party animus is undigested 1960’s resentment that people are called upon to act outside their comfort level with people from different backgrounds and races, and that government is forcing them to do this. And this is why they don’t like the government. And because it is subliminal and emotional, it’s not ever said directly. A fantasy is being fed to them: that if it weren’t for the government, they could be totally comfortable, would be wealthy and not have problems. It has a lot of a success-church mythology sprinkled with an awful lot of federal-government-is-the-instrument-of-scary-minorities-and-foreigners, and to that degree that kind of mythology. Some of those same people are totally blind to all the benefits – even to the white southerners – that the Civil Rights movement brought to them.
The Future
SL: Harry Belafonte said, during the speech he gave at the conference, that "no one should leave without a passionate idea about what to do now." What ideas or issues galvanized most passion?
TB: The issue of education and non-functional schools, particularly in cities was a big issue. Bob Moses, one of the most powerful forces in SNCC, has been working on education issues for years. There was a lot of interest in prisons and the burgeoning prison population. There are two million people in jail; reasons for this has something do with sentencing disparities of sentencing, and the effect of the drug war in imprisoning people for nonviolent crime. The two issues of prison and youth education dovetailed with some people who were upset about fact that younger and younger kids, particularly black kids, are incarcerated right out of school. A lot of people were interested in peace issues and in the question of why we are continually fighting wars, and, the question of whether there is a correlation between our having government’s tilt towards increased executive power and the national security state, and the fact that not only have we been involved in more long-standing wars, but also that we are losing them.
When I saw Eric Holder, I felt badly that people like myself and SNCC didn’t applaud him and step up to offer support when he announced plans to try 9/11 people in civilian courts. This was to me, in a SNCC way that has to do with questions about what fundamental democracy is, a courageous step. Essentially Holder was saying: “We are not afraid to test our values in the open by putting our case there and allowing defense to have its case, and that is what the American system is about. And to fear that this might fail or be dangerous is a step backward from our values and a surrender to those who equate democracy with militarization.”
SL: The Attorney General hasn’t officially retreated from his announced decision to try the 9/11 case in civilian court. So it’s not too late to stand up and voice support.
TB: You’re right. I came out of the Holder speech thinking that if SNCC wanted to write him a letter I’d do what I could, and if anyone announced a march in support of that decision, I will try to attend.
SL: After four days what do you think was the ratio, amongst conference-goers, of hope to hopelessness or just fatigue?
TB: I didn’t sense a lot of hopelessness. I sensed something more like determination and sprit. There were a lot of people who said, “When we started SNCC, there wasn’t a lot of conscious talk about how that this was going to change the South. The first thought was we couldn’t put up with it any more and that we simply wanted to do something that would show we disagreed. And not necessarily because we predicted it would lead to the kind of change it did.” People started this because they wanted to make a witness or because something welled up in them. That’s what a movement is. It wasn’t calculated. Something reminiscent of that spirit was present over the weekend.
SL: Last question: you used your panel to talk about how SNCC doesn’t take sufficient credit for the profound changes it brought. What difference does it make if SNCC -- and its accomplishments -- are fully understood?
TB: SNCC doesn’t claim the breadth of its impact. And this hurts not only SNCC’s own reputation, but contemporary politics as well. It leaves a gap. People should be a lot more optimistic about what you can achieve in politics than they are today. The Pew organization just released a study that says a huge percentage of people disparage government and say it is worthless and you can’t do anything about it. If everyone had a true appreciation of breadth of changes spawned by the Civil Rights movement in general -- and by SNCC in particular -- it would be hard to justify that level of cynicism and opposition.
Taylor Branch is the author of, among many other books, the Pulitzer Prize-winning Parting the Waters.
Tags: children, civil rights, democracy, justice, Taylor Branch, Author Talk
04/22/10
by Aziz Huq
author of Unchecked and Unbalanced: Presidential Power in a Time of Terror
Huq reflects on the theories Eli Berman offers in his new book, Radical, Religious, and Violent: The New Economics of Terrorism (MIT Press).
What is the connection between religious faith and terrorism? Talk about terrorism in the U.S. is full of impassioned debates about the morality or legality of interrogation tactics and detention measures. It is shot through with divisive position-taking on troop deployments in Iraq and target-killings in Somalia and Yemen. But, except on the fringes, public debate tiptoes around what, by some accounts, is the central plank of al Qaeda’s articulated appeal for support: a call for religious solidarity.
Thirty years ago, silence about religion and violence would have been more easily comprehensive. In the 1960s and 1970s, none of the then-active significant international terrorism groups reflected a predominantly religious character or influence. Not until 1980, RAND scholar Bruce Hoffman has observed, did the example of the Iranian revolution sink in around the world and contemporary religious terrorism appeared. Recondite academic talk of the first century Zealot movement or the Thugees aside, religion-inflicted terrorism is a distinctly contemporary phenomenon and needs to be understood as much.
So while there are voices, largely on the nativist political right, that bemoan the “invasion” of Muslims into Europe and America, or that seek to portray Muslims generally as fifth-column threats to a presumptively civilized Western order, a thoughtful, informed debate on the role of religion in terrorism is a rara avis.
And yet assumptions about religion and its connection to terrorist violence play a large and unarticulated formative role in shaping the policies and the vocabulary of public debate on terrorism. Consider the application of terrorist financing laws in the United States to freeze and shut down major Muslim charities, in effect stifling a significant core expression of religious belief. Even if animated by other concerns, federal policy in this domain is molding American Muslims’ religious practice. It is changing the repertoire of available expressions of spirituality in ways that cut to the heart of religious commitments. And while there is a federal law that supposedly curtails policies with a disparate impact on religious minorities, it is telling that no legal challenge on such grounds stands even a hope of prevailing.
On a more retail basis, assumptions about belief and religiosity play a role in day-to-day law enforcement at airports and border crossings. While I generally find the post-structuralist dictums of scholars such as Judith Butler unhelpful, I have found the experience of passing through U.S. airports as one in which I felt an “identity” as a “Muslim” articulated and imposed through the scrutiny and specific questions asked. I doubt I am alone in this.
In the media too, the role of religion in respect of terrorism is assumed and not understood. The term “jihadists,” for example, is common today in public debate. Yet it embodies an awfully big assumption. There is, as a matter of internal Islamic doctrine and scholarship through history, a debate about what the term “jihad” means between a spiritual and a physical manifestation. Al Qaeda, evidently, favors the latter. So it is passing ironic that Fox News commentators and their ilk have taken it upon themselves to settle an intramural doctrinal dispute within Islam, and to do so in a way that expands the appeal of groups that advocate violence as a tool of social change.
Against this backdrop of misarticulated assumptions and dubious intentions, Professor Eli Berman deserves large credit for essaying a dispassionate analysis of the connection between religion and terrorism. Using the tools of his trade (microeconomics), he develops a plausible model for understanding some of those connections. Although I think Berman’s model explains less than he claims—for reasons I will explore below—his book contains useful insights. It is also a model of clear and accessible writing, accessible to a non-specialist without sacrificing rigor.
The core of Berman’s claim is that religious organizations operate as “economic clubs” that collectively provide social services and support not just to an individual who may commit terrorist acts but to a larger family. To insulate the religious group from free-riders—who mooch off the services without contributing their share—religious clubs enforce costly prohibitions and other rules. Under these circumstances that religious groups generate the trust, commitment, and willingness to sacrifice that enable religious violence. Developing his thesis, Berman focuses on four groups—the Taliban, Hamas, Hezbollah, and Muqtada al-Sadr’s network—that use violence in quite different ways and that have strikingly different attitudes toward non-violence modalities of political change, in particular elections.
As a threshold matter, it bears noting that Berman’s notion of clubs is similar to, but different in emphasis from James Buchanan’s classic 1965 discussion of “club goods.” Buchanan characterized “club goods” as a variant on public goods: they are excludable (in the sense that some people can be kept out) but non-rivalrous (in the sense that my consumption of the good does not diminish years). It is not clear the phenomena Berman analyzes meet both criteria, and the use of a familiar term in this novel way is a bit disconcerting.
More generally, I am persuaded that Berman has set forth an important contribution to the study of terrorist violence but not that he has generated a universal diagnosis. Berman’s thesis, I think, helps explain how religious structures enable violence. But this is very different from claiming that religious organizations conduce to violence. Indeed, even a casual glance around suggests there were plenty of tightly-knit religious organizations that do not produce terrorist violence. Relations between religious organization and violence seem more contingent and indirect. The relation of American evangelical movements to anti-abortion violence, is neither direct nor simple. Equally, even for the groups Berman studies, violence seems one option among many (including electoral competition), and it would be interesting to know more about how tightly-knit groups select between political strategies under changing circumstances.
Equally important, there is a growing body of evidence concerning al Qaeda recruits in the West that does not fit Berman’s model. Recent research in the United Kingdom suggests that those amenable to recruitment by terrorist groups do not come from thick religious communities, and indeed have relatively sparse and fragmented understanding of Islam. The research also suggests that more robust religious training may be an inoculating measure against terrorist recruitment.
That Berman’s model could be supplemented should not detract from its evident utility. Perhaps a paperback edition could explore further connections. Moreover, it could correct some other odd omissions. Although Berman discusses the Taliban at length, for example, he does not cite or apply the work of Antonio Giustozzi, who has been the most perceptive and careful scholar of what is called the “neo-Taliban.” Along with the odd omission of Buchanan (whose canonical article does not even merit a bibliographic reference), this leaves the reader wondering more generally about omissions.
Aziz Huq is an Assistant Professor of Law at the University of Chicago and is co-author, with Frederick A.O. Schwarz Jr., of Unchecked and Unbalanced: Presidential Power in a Time of Terror (New Press).
Tags: civil rights, Eli Berman, National Security, Book Briefs
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