RULE OF LAW
By Beth Curtis, sister of John Knock
In 1965, I was an idealistic graduate student. It was an exciting time with Michael Harrington's culture of poverty, the beginning of the Welfare Rights Movement, the civil Rights Movement and the dark cloud of Viet Nam as a back drop. The rights of the individual were magnified by these MOVEMENTS AND CHILDREN OF THE 60S looked to the Federal Government to define, bestow and preserve the same. An activist court was cheered and legislation to regulate human behavior was warmly welcomed. Bobby Kennedy's pursuit of the scoundrels of organized crime would remove a cancer from our country. Rico, conspiracy and mandatory minimums were on their way.
Forty years later I still strive to understand the individual's relationship to the state and how there can be a relationship that maintains freedom through the "Rule of Law". Waves of nausea now overcome me when I hear the phrase.
We now have one in every 30 citizens interfacing with the criminal justice complex. Rural communities hope there will be a need for more prisons and vie for them to be built in their community. Prisons are considered economic development. Many federal, State and Local Government jobs are dependent on the growth of our prison population. As more and more men and women are interfacing with the court system, the rule of law is a labyrinth of conflict and contradiction.
This contract between the governed and the state becomes unfathomable. Just as unfathomable is some consensus about what individual rights are. Case law piles on in volumes, and contradictory and minutely parsed decisions leave defendants without a clear understanding of process. Additionally they are required to use the services of an army of attorneys and advocates of various abilities and ethics. The financial resources of their families are sucked into the black hole of our criminal justice system.
If forfeitable assets are part of the bounty of the state, defense attorneys must defend their clients by walking on eggs, fearful that they may also be prosecuted. This further compromises the rights of the defendant. Many defendants must make plea agreements to things they knew little or nothing about because they have no resources. Even those with ample resources plea to avoid the almost certain conviction, and harsher sentence. Grand Juries are now used to investigate, rather than to decide if there is probable cause to indict.
Split decisions with carefully parsed nuances send hopes and money into this abyss. It must be noted that each individual caught in this web has children, parents, brothers and sisters who love them and are also disillusioned, confounded, and perhaps bitter about resources expended on a system that is so confounding yet has the power to take away the future of so many families.
How did we become so fearful of freedom that we have insisted on laws that criminalize so much human behavior and even thought? We now routinely convict people of crimes that never took place, in places the defendant has never been, with people they do not know and incidentally, the criminal act was instigated by law enforcement. The rest of the world disdains us and developing countries reject our rule of law. We investigate people who have not broken the law to prevent lawlessness. Our law enforcement is becoming lawless. Our rule of law is too voluminous and therefore arbitrary. Even the language, War on Crime, belies the rule of law. Our justice system uses the metaphors of war, and the object is the citizens whose part of the covenant is to give consent.
Brilliant trial and appellate attorneys arguing cases and judges deciding them are thrilling to read and even more so to watch. Their memory and critical thought is as sharp and shining as a mirror shattering. To me it is also as frightening as it would be to walk bare foot across the broken glass.
As I watch Justice Bryer and Justice Scalia have conversations about decisions and interpretations, I long for something more absolute. Something more absolute would be language that is clear, simple and true. How can a man's life and liberty depend on nuances culled from thousands and thousands of pages of case law with the reasonable possibility of a single sentence or concept on one of those pages becoming determinative. Too much law turns "Rule of Law" into rule of men.
What would Aristotle think of our rule of law? What would our founding fathers see? We have constant imposition and enforcement of arbitrary and restrictive values imposed on us by an over active legislative branch. These are interpreted and judged by a judiciary system that seems to be will aware of the fact that the governed can no longer know the rules of the covenant they are part of. I just fear for our freedoms.
I know there is logic and order in the process, but the sheer magnitude and complexity of the possibilities invites subjectivity.