James M. Redwine

Indiana

When Mercy Seasons Justice

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Photo by Peg Redwine

For the past two weeks as a member of the National Judicial College’s faculty I have helped to present an online continuing education course to judges from several states. A significant portion of the course involved an examination of America’s penal system.

In general, the continuum of criminal justice runs from Deuteronomy, 10:21, to Shakespeare’s The Merchant of Venice, Act 4, scene 1. Deuteronomy provides:

“Thine eye shall not pity. It shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”

But Shakespeare’s Portia pleads with Shylock to show mercy:

“The quality of mercy is not strained. It droppeth as the gentle rain from heaven upon the place beneath. It is twice blest: It blesseth him that gives and him that takes.

….

It is an attribute to God Himself; And earthly power doth then show likest God’s when mercy seasons justice.”

Gentle Reader, you have already discerned the Devil is in the vast distance of details between these two extremes. How should we as judges of our fellow humans devise and apply a sentence that is just for the individual in court and society in general?

The State of Indiana’s Constitution provides a foundational mandate for judges when it comes to designing and imposing sentences that both follow the law and are just; just to the defendant, to any victims and to the general public. Article I, section 18 demands that as to Indiana’s legal system:

“The penal code shall be founded on the principles of reformation, and not on vindictive justice.”

For judges to be “Strict Constructionists” and conservative followers of the Indiana charter, vengeance may play no role while reformation must be the goal. One of my fellow National Judicial College faculty mates was Judge Timothy Brauer from Oklahoma. The Oklahoma Constitution provides:

“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property or reputation, and right and justice shall be administered without sale, denial, delay or prejudice.”

Article II, Bill of Rights,

Section II-6.

As a member in good standing of both the Indiana and Oklahoma Bars, I am bound by the Constitutions of both states. Oklahoma’s reference to justice not being for sale reminds of Socrates’ admonition to his judges in the Athenian Senate:

“A judge’s duty is not to make a present of justice, but to give judgment; and judges are sworn to judge according to the laws, and not according to their own good or pleasure.”

Plato’s Apology of Socrates.

The wisdom of basing a system of justice on mercy instead of vengeance has been recognized for thousands of years. Jesus knew society prospered when the Golden Rule and not rule by gold was the standard. And WWII war correspondent Ernie Pyle reminded all of us, especially judges:

“When you have lived with the unnatural mass cruelty that mankind is capable of inflicting on itself, you find yourself dispossessed of the faculty for blaming one poor man for the triviality of his faults.”

As judges should learn, all they have to do to do their duty in imposing sentences is to strictly follow the applicable law which includes the divine judicial quality of not straining at mercy.

Photo by Peg Redwine

A Legal Revolution

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Alexis de Tocqueville (1805-1859) was a Frenchman who studied American society during a nine-month tour in 1831 when the United States were still simmering with vitriolic political animus from the 1824 and 1828 elections between John Quincy Adams and Andrew Jackson. Adams was elected by the House of Representatives in 1824 and Jackson won via the Electoral College in 1828. After neither election did the United States fall into chaos, even though Jackson won both the popular vote and a plurality, but not a majority, of the Electoral College vote yet Adams grabbed the presidency in 1824.

Four men ran for president in 1824, John Quincy Adams, Andrew Jackson, Henry Clay and William Crawford. Because the Electoral College vote was split in such a way that none of the four received a majority, as required to be elected President, under the Twelfth Amendment to the U.S. Constitution a “contingent” election was held in the House of Representatives. Each state’s delegation was given one vote and Adams was elected. Jackson and his supporters alleged that Adams and Clay had entered into a “Corrupt Bargain” to shift Clay’s votes to Adams. Regardless, Adams was elected by the House and the country moved on until 1828 when Jackson ran against Adams again.

In his treatise on American democracy de Tocqueville defined America’s presidential election as “a revolution at law” and described it as follows:

“Every four years, long before the appointed (presidential election) day arrives, the election becomes the greatest, and one might say the only, affair occupying men’s minds…. As the election draws near intrigues grow more active and agitation is more lively and widespread. The citizens divide up into several camps.… The whole nation gets into a feverish state.”

De Tocqueville’s ultimate verdict on America’s democracy was encapsulated in his general verdict on how political controversies were ultimately resolved. His observation was that:

“In America there is hardly a political question which does not sooner or later turn into a judicial one.”

De Tocqueville’s opinion was that the American manner of resolving political issues without bloodshed worked because, unlike European monarchies, the United States citizens respected the law and they did so because they had the right to both create it and change it. Since we get to choose our legislators who write our election laws and because we can change the laws by changing whom we elect if we are unhappy, we accept the laws as written including who is ultimately declared the winner of a current election.

The laws we have the right to create and the right to change include filing for an elected office, running for that office, who counts the votes, how they are counted, as well as how and when someone can legally contest an election. That legal procedure applies to all facets of an election cycle. Each state’s legislature has the authority to establish its own procedures in this regard as long as they do not violate federal law.

As an Indiana Circuit Court Judge I was involved in a recount of a congressional race, a county clerk general election, a county council general election, a town council election and a county council primary election. The Indiana legislature had enacted and published a clear statutory procedure for each type of election contest, including what role each public official should play in any recount. The statutes demanded total openness and media access to ensure the public could have confidence that if all involved followed the law a clear winner would be fairly determined. There were time limits, controls and transparency. After a recount result was certified in each contest life moved on and the eventual losers and their supporters accepted the results because they had had their “day in court”; that is, democratically enacted law was followed not the arbitrary or partisan activity of individuals.

De Tocqueville compared America’s hotly contested democratic elections to a surging river that strains at its banks with raging waters then calms down and carries on peacefully once the results have been properly certified. From my own experience with several elections and after the recounts of some of them, I agree with de Tocqueville’s analogy.

That is not to say I am for or against any type of recount for any office. I absolutely have no position on whether any candidate for any office should concede or contest anything. My position is simply that as long as the law is properly followed our democracy can handle either circumstance.

A True Depression

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If a recession is when your neighbors lose their jobs but it is a depression when you lose yours, what is the analogy for our society’s losses due to ’Ole 19? Let me suggest that for Peg it was when she finally submitted herself to asking me to cut her hair. Yep, it’s complete capitulation; 19 can claim total victory. I should be able to show you photographic proof but it turns out that a wife’s hirsute humiliation is in the same category of bad husbanding as failing to separate the whites and colors for the laundry. No pictures of my artistry were allowed. In fact, Peg has found a new use for the flowered bandana she uses as a face mask; it now covers the top of her head too. And my attempts to assure her that within a few months her hair will grow back just seem to exacerbate the situation. Please allow me to digress.

Gentle Reader, you may have noticed it is hot in July and August near the latitude along the Mason-Dixon Line. Well Peg, who was born in upstate New York, had not quite acclimated to the previous weeks of 100-degree temperatures. Her Joan of Arc length hair tended to stick to her forehead and the back of her neck whenever she lugged water to her flowers and her vegetable garden. The martyr-type comparison will make sense by the time you finish the column. I was understanding and sympathetic, but my advice that Mother Nature would eventually provide rain was not received gladly. She stubbornly persisted and even suggested I could get involved if the TV re-runs of old golf matches didn’t interfere. Surely, we need not revisit that painful discussion.

The real problem is not me but ’Ole 19. Peg used to go to the beauty shop to get her hair cut. Or, when we still lived in Indiana, our daughter, Heather, who is a beautician would take care of it. However, now, as we do not wish to contribute to 19’s macabre statistics, we have socially isolated since our last foray out to eat which was March the 5th. We wear masks, we wash our hands, we ignore our friends and family, we shop online, we eat lots of tuna. But we both knew the Corona Virus had achieved complete domination when Peg said last week, “Jim, I just can’t stand this heat and having my hair string down my face and neck. Nobody but you is ever going to see me again anyway (I thought that a little overly dramatic) so you are going to have to cut it. Come watch these YouTube videos and try to pay attention.”

Well, it didn’t look that hard to me. I remember when I got my hair cut in Pawhuska, Oklahoma by Clyde Ensley or Bob Butts or in Mt. Vernon, Indiana by Steve Burris. Heck, it appeared about like cleaning a squirrel or a chicken. Just slice here, snip there, shear off the sides. No problem. After watching for ten minutes or so I was pretty sure I could give Vidal Sassoon a run. “Peg, get a towel and I’ll grab a pair of scissors and the electric clippers you used to use on our dearly departed dog and meet you on the front porch.”

It probably would have turned out better if Peg had not sat as if she were an unfortunate customer of an electric chair and if she hadn’t jumped and squirmed each time the clippers whirred and the scissors snipped. Regardless, in my unbiased opinion I did a fine job. If the bowl I used had fit better it would have helped. I can only guess at Peg’s opinion as she hardly has spoken to me for three days and when she does it is difficult to make out what she is saying amid the shrieks, sobs and expletives as she tries to pull her hair back to its former length.

Hair on the porch floor

The Right To Matter

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From www.270towin.com

It was not the British Parliament’s tax on tea that caused the Boston Tea Party on December 16, 1773; it was the denial of the Colonists’ right to be represented in Parliament.

It is not the sexual part of unwanted sex that matters to the Me Too Movement, we Homo sapiens have spent the last 200 to 300 thousand years engaging in sex; it is the “unwanted” factor that is objectionable.

And when our Founders were barely able to cobble together our Republic it was not the fact that some of the Thirteen Colonies had much greater populations than others or much greater wealth than others that almost caused the United States to be simply thirteen entirely separate entities; it was the fear by both the more populous and less populous colonies that their voices would not sufficiently matter.

There were many reasons why and how our constitutional democracy survived colliding circumstances, desires and egos but two of the most significant compromises were the Proportional Representative construct and the Electoral College.

Large states accepted the compromise that in the Senate each state would have two and only two Senators because their proportional influence was recognized by having the number of Congressional Representatives determined by population. Smaller states accepted this arrangement in like manner because they would have an equal voice in at least one of the two Congressional bodies, the Senate, even though they would have fewer Congresspersons than larger states.

Then there is the imaginative system of the Electoral College. The Electoral College determines who will be the Executive Branch leaders, the President and Vice President, via a method similar to the proportional representative system. And because the President has the authority to nominate all federal judges, whoever has influence over the election of the President has an indirect voice in the makeup of the third branch of our federal government, the Judicial Branch. Therefore, the Electoral College, whose only job is to meet every four years and vote for the Chief Executive and the Vice President, has some influence over two of the three Branches of our government. Of course, the Executive Branch contains the armed forces, the F.B.I., the D.E.A., etc., etc., etc. And these countless agencies assert immense power over all of us. We certainly want our opinions to matter when it comes to all those aspects of our government.

The number of Electors of the Electoral College is determined by totaling the number of Congressional Representatives each state has and each state’s two senators. The number of Congressional Representatives is derived from each state’s population. So, very similar to the general system of representative/proportional government, where all states have two and only two senators but have differing numbers of Congresspersons based on population, the Electoral College is based on every state having some Electors but more populous states having more Electors than less populous states.

Currently there are 538 members of the Electoral College based on 100 Senators and 438 Congressional Representatives. For example, Indiana has 2 Senators and 9 Congresspersons for a total of 11 Electors and Oklahoma has 2 Senators and 5 Congresspersons for a total of 7 Electors. On the other hand, California has 2 Senators and 53 Congresspersons for a total of 55 Electors. Indiana’s sister state of Illinois has 20 Electors, almost twice as many as Indiana, and Oklahoma’s sister state of Texas has 38, over five times as many as Oklahoma. The District of Columbia has no Senators but does have 3 Electors based on the 23rd Amendment to the Constitution. Three is the least number of Electors of any state. The U.S. Territories do not receive any Electors.

Whichever candidate receives 270 Electoral votes, the current majority of Electors, is elected President. Sometimes the candidate who receives the most popular votes does not receive a majority of the Electoral votes. This always reignites a debate to eliminate the Electoral College and go to a pure one person/one vote system. Such was the case in 2016 when the Democrat nominee Hillary Clinton received 3,000,000 more popular votes than the Republican nominee Donald Trump, but Trump received 304 Electoral votes, which was 77 more than Clinton received. Had this outcome been inverted I suggest the pro/anti-Electoral College debate would have also been inverted.

There certainly are legitimate arguments for modifying or even eliminating the Electoral College system even though the College has helped to assuage the constant yin and yang of large states versus small ones. As for me, having spent most of my life, so far, in either Oklahoma or Indiana, I do not wish to rely upon the tender mercies of the few lumbering giant states with huge populations of voters that might deign to turn a deaf ear to my concerns and those of the other residents of the numerous less populous states.

Pugh Or Phew?

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JPeg Osage Ranch

Peg and I recently moved from Posey County in southwestern Indiana to Osage County in northeastern Oklahoma. The acculturalization for me was fairly seamless as I was born in Pawhuska, which is the county seat of The Osage. As for Peg, she was born in Schenectady, New York and has lived north of the Mason-Dixon Line and east of the Mississippi River her whole life. She is what we of the Oklahoma persuasion would generally classify as a “Yankee”. For Peg, the move from the land of corn, soybeans and concrete has been, well, let’s just say more interesting. And our log cabin out on the prairie thirty miles from the nearest Walmart occasionally poses new challenges for her. Oh, we do have a Dollar General about five miles away, but there’s one of those everywhere so that does not assuage Peg’s concerns.

As Peg becomes accustomed to being called “Ma’am” and getting to frequently use her high beam headlights on the uncrowded highways she is often confronted with the ambiance of a life lived among creatures she used to assume lived in zoos or within the confines of the Tallgrass Prairie Nature Preserve or the 3,700 acres of the marvelous Woolaroc Museum with bison and other animals only 7 miles from our cabin. Imagine her reactions when she began to encounter hawks, eagles, deer, wild turkeys, cattle, armadillos, scorpions, coyotes, opossums and raccoons right outside our door. Actually she has habituated quite well to most of Mother Nature’s creatures even when they pushed their way into our personal space. Unfortunately, our most recent visitors have been a family of skunks. That’s right. What the French zoologist Charles Lucien Bonaparte (1803-1857) classified as Mephitidae, which means stink.

When Pepé Le Pew was cavorting on the cartoon movie screen in search of love while spouting off in a French accent, the skunk came across as cute and lovable. However, when our own skunk family took up residence under our cabin and spent their nights defending their territory by spraying copious volumes of malodorous ink at the opossums challenging for the same space, Peg called for Terminix. The nearest office was in Tulsa fifty miles away.

Now we have live traps baited with some kind of cat food and cement poured into every cranny around the base of our cabin. Each night the skunks find a new way to burrow, chew or claw their way back under our home.  Gentle Reader, please imagine city girl Peg’s reaction to the wafting of odiferous waves of stench up through the floor and into her rugs and clothing. That’s right. It ain’t pleasant.

On the positive side we probably do not need to worry about any visitors wanting to stay even the traditional 3-day limit. As for Peg, she now understands why I bought a shotgun when we decided to move west.