In Search of the “Oaks of Justice”

The controversy over judicial compensation in New York, which was addressed in the state’s current budget, has refocused attention on the issue of how republican government balances principles of judicial independence with the doctrine of separation of powers and accountability to the rule of law.

As policy makers grappled with this issue, we were reminded of past debates and the need to understand just how tentative our civil liberties have become in the face of contemporary public passions and how critical the judges and justices who are entrusted with the care of these precious rights are to the preservation of liberty.  Justice should not be fungible.  Members of the judiciary should be compensated fairly because the stakes are high and society must attract to the bench the very best minds and temperaments the legal profession has to offer in order to insure a fair, impartial and independent judiciary.

In her parting remarks before leaving the Court, former Supreme Court Justice Sandra Day O’Connor stated that the controversy over judicial action and independence is not new and that the subject continues to be relevant especially as it concerns individual rights and freedoms and the role of judges in the nation’s criminal justice system.

Regardless of whether one approaches the issue from the left or the right, the present state of American law evidences an encroaching disregard of fundamental freedoms as an antidote to crime and terrorism and as a mode of law enforcement.  What makes this all the more frightening is that it has gone largely unnoticed by the public.  Most people are of the opinion that those in prison belong there and have had a fair trial and that fundamental fairness and due process of law are not things that law abiding citizens need to concern themselves about.

Our judges are intended to be guardians of the Constitution, the ones who, as Justice Anthony Kennedy has described, “seek to create order out of a disordered reality”.

Thomas Jefferson observed in an 1820 letter, “that judges seem to see themselves as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed and one which would place us all under oligarchy”.

The expansion of law enforcement in the United States over the past twenty-five years, has placed law abiding citizens at risk and in fact at loss of the very life, liberty and happiness that the founders considered to be our fundamental entitlements.

One need only look at the effect of current abandonment of constitutional protections by prosecutorial action, against individual citizens to understand the extent to which government, cloaked with banners of patriotism, and moved by undercurrents of fear, can subordinate even the most basic notions of fundamental fairness and due process of law, to the tyranny of contemporary passions and overriding concerns for security.

John Adams said that the form of government, which was best, was that which produced the greatest amount of happiness for the largest number of people.  Adams believed that “all good government was republican”, and that the “true idea” of a republic was “an empire of laws and not of men”.

American justice today has morphed into a vehicle for unified state action against targeted individuals and government’s sole purpose it seems has become to secure conviction and punishment of the accused even at the risk of the diminishment of constitutional protections.

The great presumption of innocence of an accused person has been replaced with a not too subtle notion that people are not accused without some culpability and a mind-set that once the prosecutorial juggernaut has been launched, judicial officers are essentially relegated to the role of presiding over the consumption of state prosecutorial processes, by facilitating conviction, ensuring punishment and resisting any disturbance of those determinations on appeal.

The only possible antidote to the deprivation of due process in this country is money.  Individuals who can afford expensive lawyers can level the playing field.  Those who are without money are crushed, and assimilated into the prison system.  Justice should not be fungible.

Adams said that it was better for guilty persons to escape unpunished than for an innocent person to be convicted.  The reason, he said is, “because it is of more importance to the community that innocence should be protected, than it is that guilt should be punished”.

Justice Tom Clark would repeat this principle almost two centuries later in the Supreme Court’s landmark decision in Mapp v Ohio (citation omitted), “If a guilty man goes free, it is the law that set him free.  Nothing will destroy a government faster than its willingness to disregard its own laws, the very charter of its own existence”.

“Facts are stubborn things”, John Adams once told a jury, “and whatever may be our wishes, our inclinations or dictums of our passions, they cannot alter the state of facts and evidence”.

Once indicted or charged, a citizen accused no longer can take comfort in the fact that the state must prove his guilt beyond a reasonable doubt or that she need not concern herself with anything beyond creating reasonable doubt.  Instead, in our current criminal justice climate, an accused must prove his innocence conclusively, almost to point where the trier of fact has no choice but to acquit. The burden of proof has indeed shifted.

Grand Juries are no longer the “buffers” between government and its citizenry that serve to insulate individuals from the harshness and ordeal of defending themselves against criminal allegations.  Present day grand juries have been reduced to the role of doing the bidding of prosecutors.  They are fully a prosecutorial forum subject to widespread abuses of discretionary authority.

Individual guarantees to such things as freedom from unreasonable searches and seizures, trial by jury, right to counsel, and effective counsel, as well as the right to be properly indicted by a grand jury, just to name a few, have become more nostalgic concepts than constitutional realities and have been and continue to be whittled away by the state courts, one after another, through unified efforts of prosecutors, jurists, and court appointed defense lawyers, all with the passive acquiescence of  an uninformed and frightened public.  We are losing the law.

Individuals are sent to prison every day having been deprived of a fair trial, in many cases, as result of improper plea agreements exacted by prosecutors, advocated by court appointed defense counsel and approved by judges who are under constant pressure from state court administrators to comply with formal “standards and goals for the timely disposition of cases”.

Once sentenced, a New York State inmate has less than a three percent prospect of post-conviction relief or success on appeal especially those who are indigent.

The Supreme Court has effectively eliminated a state inmate’s right to access self-help in prison law libraries. New York is one of the few states that continue to provide for reasonably adequate inmate self-help in its state prison law libraries.

Indigent representation by court appointed lawyers has been reduced to inadequate, perfunctory performance, and prisoner access to federal habeas corpus, once the last and best hope for protecting citizens from unlawful imprisonment, was essentially eviscerated during the Clinton administration as part of the Democratic President’s compromise to power after the 1994 mid-term elections.  The “Great Writ”, once held with the esteem given a sacrament, has gradually been reduced to near nuisance value.

Families are separated from loved ones and bread winners through the imposition of long, harsh sentences routinely imposed by jurists who do the bidding of prosecutors and pander to advocates of arbitrary and selective prosecution and punishment of the crimes of the day.

The United States leads the world in imprisoning its citizens and its minorities as prison construction and a virtual criminal justice corrections industry expands at an alarming rate.

Privatization of correctional services has resulted in the emergence of several companies such as Corrections Corporation of America, the CEO Group, and Carnell Companies, which yield corporate profits at taxpayer expense and human costs, often contractually exacting from the states, guarantees of ninety percent continued occupancy levels in the private prisons.

The nation’s current prison and jail population stands at about 2.3 million, an increase of 2.8% since 2003.  The waste and unaccountable profligate spending on prisons and corrections nationally is an economic crime in itself and accounts in large part for our national debt and the dire financial conditions of the states.  Federal, state and local governments spent $62 billion on corrections in fiscal year 2004, according to the U.S. Department of Justice, Bureau of Justice Statistics, 18% more than in 2000 and 77% more than 1994.  Figures from 2005 to 2011 are even higher.

The United States has incarcerated ten times as many of its people as most other democracies.  In fact, 12.6% of all American black males in their twenties are behind bars, with 3.6% of Hispanic males and 1.7% of white males incarcerated.  This, in spite of the fact that violent crime in the United States has dropped by over 30% since 1994 and property crimes fell by 29%.

The prison population has nonetheless continued to climb at a rate of 3.5% per year since 1995 with two out of every three prisoners released, behind bars again within two to three years of their release.  Approximately seventy percent of those released from prison return within three years, according to some studies.

Fifty five to sixty five percent of New York State’s prison population is African American, 25% to 35% is Latino, and 5% to 10% is white or “other”.  Likewise, 86% of all New York State Rockefeller drug law offenders in New York State’s prison are African American.

These shocking numbers speak loudly of a “New Jim Crow” and the cruelty of a system that fills its prisons, with the same people year after year, decade after decade, without ever addressing the root causes of what leads them there; poverty, exclusion, illiteracy, racism, the destruction of the family unit, a culture of death, violence, drugs, and sex, and a growing gap between rich and poor which is rapidly expanding into a great abyss.

Prisons are destructive of society, families and most of all, of our children.  The collateral damage is incalculable.

Poverty law for criminal defendants in the United States has reached crisis proportions and in New York State has elevated to a certified constitutional class action.

True rehabilitation programs for education, mentoring and reintegration of prisoners back to their families and into society are being eliminated in response to budget cuts and system guaranteed recidivism is rampant.  Warehousing inmates is the policy of choice in most states instead of rehabilitating offenders, closing prisons and building schools and day care centers.  Corrections officers unions wield disproportionate political power, while teachers unions struggle to keep teacher’s jobs and maintain modest after school programs that keep our children off the streets.

Every day, more and more middle class Americans, those who have up to now thought of themselves as safely law abiding, witness or directly experience the loss of liberty through the denial of due process and fundamental fairness by state courts.  Society’s ultimate sanction, separation and removal, is imposed in a routine, almost casual manner.

Sadly, too many of today’s jurists strive to accommodate the demands of the hearty American appetite for enforcement and marginalized civil liberties.  They are not all the sturdy trustees who guaranty each individual and his family the peace of mind that in the United States of America, no court can imprison an individual without first scrupulously and completely exhausting every right, privilege and immunity, guaranteed by the Federal Constitution.

Indeed it is this very assurance that Jefferson and Adams advanced, which has become so wanting on the American scene.

Adams reminded us that Constitutional prescriptions for government’s role are relative to “fundamental questions about the realities of human nature, political power and the good society”.  This expectation, the demand of every citizen, that his government secure his rights to liberty and happiness and by no means take actions to thwart them, are basic to human nature, divinely given and, as another son of Massachusetts, John F. Kennedy would remind us a century and three quarters later, based upon the belief, “that the rights of man come not from the generosity of the state, but from the hand of God”.

Without real criminal justice reform in the United States, there will be an eventual irreparable undermining of confidence in our judicial system.  Ordinary law abiding people ultimately will not allow themselves, their families and financial security to be destroyed by public officials purporting to be acting on their behalf and in their names.

Decisive criminal justice reform and action is not only necessary but is vital to the preservation of our personal liberties, our pursuit of happiness, and confidence in our cherished institutions.

When judges take that same solemn oath, to which our forbearers prescribed over two centuries ago, to defend the constitution, they swear to uphold the right of every American, to rely on the rule of law, no matter what crime might be alleged or what the passions of the day may be.

To ensure this bond of fidelity, we must attract only the very best legal minds to the bench; experienced thoughtful men and women, dedicated to public service through law.

It is essential therefore that the men and women who serve as our judges and justices receive compensation commensurate with the burdens imposed by their office.  That is why New York was right to establish a special Commission on Judicial Compensation and raise the state court judges’ salaries to the same level as the federal bench.  We must continue to be vigilant in promoting judicial excellence.  In past decades our justices and judges accepted judicial status as the crowning jewels of a distinguished legal career, not in lieu of one.

In New York State, judges and justices such as Charles Breitel, Vito Titone, Lawrence Cooke, Jacob Fuchsberg, Matthew Jasen, Joseph Bellacosca, James Hopkins, Michael Gabrielli, Judith Kaye, Isaac Rubin, Milton Mollen and Frank Gulotta, just to name a few, established New York State’s primacy and set the standards in state and federal courts nationwide for bipartisan judicial excellence.  We must make it an essential priority to re-establish the primacy of New York State’s judiciary by seeking out qualified men and women with a true sense of proportion to fill our judicial positions and embark on a new era of court reform in the tradition of the 1976-1977 court reform amendments implemented under the leadership of former Governor Hugh Carey, former Chief Judge Charles Breitel, and former Chief Administrative Judge Richard Bartlett.

Our society cannot afford to do any less, in search of  the“Oaks of Justice”.


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