Activist Judges?

By Nora Callahan, Executive Director, November Coalition

Prisons are crammed to capacity and beyond, an undeniable fact. The various felony factories our state and federal governments have erected are running full blast; one might even say out of control. Courts barely function, habeas corpus has been all but suspended in many cases, and conditions in prisons are deteriorating rapidly. How could such an allegedly enlightened society have gotten itself into this mess; a situation in which it values prisons over schools and universities, and pays prison guards higher salaries than teachers and professors?

Once you peek behind the Wizard of Oz's curtain, once you have been exposed to this lunacy, you understand how the United States has foolishly waded into this morass: via the war on drugs. Now the federal government is criminalizing everything it can, and many state prosecutors are gleefully perverting the Three Strikes Laws and putting people away for life for stealing a ham sandwich. Parole and probation have largely been eliminated at a terrible financial cost, the human cost is no longer measurable.

Enter the extreme-right congressman, pulling his hair and lamenting there is too much judicial activism, that judges in this country, particularly federal judges, are so liberal they are labelled leftist pinko-subversives. Mr. Orrin Hatch, Chairman of the Senate Judiciary Committee, repeatedly makes these accusations, as does John Ashcroft; the irony being that they have resisted filling positions in the Sentencing Commission, which was chartered specifically to make the necessary adjustments in federal sentencing matters. Recently this well-worn page in the extreme-right cookbook was rattled by Tom De Lay (R-TX), who has sworn to end judicial activism by passing a bill "to limit the jurisdiction of the federal courts with respect to prison release orders."

In other words, there will be no oversight at all. It is the resurgence of mindless retribution; that it is not quite enough to cage a person for vastly inordinate terms of imprisonment, but that person must be physically and mentally crushed as well. In Latin this is called home homini lupus: man is wolf to man, and Tom De Lay and his Republican pack are baying loudly.

This is the same clique that clutches the flag and gabbles about "American" and "Family Values", as if mass imprisonment, as if having more of its citizenry behind bars than any country on Earth has become an American value. Is turning the United States into one vast gulag an "American value"? Let a federal judge make any constitutionally correct or protective decision and the pack howls in dismay, the hue and cry raised that the judiciary is perverting congressional intent, that judges are legislating and in league with the criminal element.

"The courts have undone almost every major anti-crime initiative passed by the legislative branch. There is an activist judge behind the most perverse failures of today's justice system." - Rep. Tom De Lay

Not only does this statement evade the fact that it is the legislative branch which has passed an enormous amount of patently bad laws with their attendant overly punitive penalties, which have clogged the courts and prisons, it is also a lie. In a country that has almost two million people behind bars, over a million of them nonviolent offenders, such a statement is ludicrous, self-serving nonsense.

The idea that federal judges are activists is possibly just as ludicrous, as evinced by their sanctioning a drug war exception to our Bill of Rights. Unfortunately the fact of the matter is that most state and federal judges are compliant commissars who have gone along with the program despite the knowledge - evident for years now - that it was a one way ticket on the rails to the end of justice in America, which is a very puzzling thing indeed.

For a class of men and women who cannot be removed from office unless they're impeached, they are amazingly timid and seem to fear rebuke by the extreme-right cabal as if it is the worst thing imaginable. I would suggest that there is something far worse, put forth bluntly by J. Lawrence Irving, a federal judge, upon the occasion of his resignation for refusing to sentence yet another non-violent drug law violator to yet another unconscionable prison term. Judge Irving stated that he did not want to face some future tribunal having to invoke the Nuremberg Defense, which is "I was only following orders."

This was a profound statement back in 1991 and his allusion to the Nazi Party was appropriate and prophetic. What we have in criminal justice today is adherence to the party line to a fault and slavish devotion to a sentencing scheme which has even been acknowledged by its progenitors as ill-conceived, knee-jerk, overly rigid and too punitive by far. If we truly had an activist judiciary, the myriad flaws in this horrid Sentence Guideline system would have been bared to the bone by now, but the fact is, too few judges, state and federal, have spoken out.

Why is this so? We believe that Noam Chomsky, Professor of Linguistics at the Massachusetts Institute of Technology, summed it up concisely when he said of the American propaganda machine in general: "It's almost a find of fanaticism, It's a reflection of the extreme success of indoctrination in American society. You don't have any other society where the educated classes, at least, are controlled by the propaganda system." (Chronicles of Dissent, Common Courage Press, 1992)

To be sure, a certain number of judges have made commentary upon the destructive nature of the drug war, notably Honorable Richard Posner, Myron Bright and Juan Torruella, for example, who has stated that "Current discussion on drugs is ruled by political rhetoric and anti-drug hysteria...drug prosecutors and law enforcement has run rampant over the Bill of Rights."

And most recently Judge Robert Pratt decried "a system that incarcerates our fellow citizens for inordinately long periods of time, wastes huge amounts of taxpayer's dollars, ruins lives, and does not accomplish the stated purpose..."

This last was a refreshing change; drug law violators are once again "fellow citizens" rather than "dirty, drug dealing, vampire-scum," but no judge has opined that prison doors be opened to the legions of nonviolent drug law violators currently choking the system and few have stated the obvious: that the criminal justice system itself is at stake and shackled to it is the Bill of Rights.

By and larger the judiciary is like a collective Sergeant Schultz of yesteryear's Hogan's Heroes (I know nothing!). Why is that, we wonder? If it's fear, then American judges should fear history more than Orrin Hatch; if it's love of the status quo, they should realize that it is changing fast; if they don't want to rock the boat, they should yell for help anyway because the boat is sinking from beneath them. Above all, judges in this country should remember this: the National Socialists, like the extreme-right, abhorred activist judges. Look where that got them and see how contemptuous is the sidelong glance of history.