James M. Redwine

Judicial

Hope Is The Plan

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It is not what I have not known that has caused me the most concern, it has been those things I have known for sure that turn out to be wrong. Usually when I have had no doubt of my position on an issue it matters little if the facts belie my stance as only personal embarrassment is the result. However, as a judge, when I have cavalierly approached a problem, say the best way to legally process non-violent drug offenders, real harm may have resulted. At the least, real good that might have been done may not have been.

I do not assert that I now have the answer to what is the best way for a judge, at least one judge, to handle non-violent users of illegal substances. In fact, I seem to have transitioned from absolute certainty that the best way to save the miscreant and society was to slam a prison gate for a significant time to fearing I have no solution.

I am still comfortable incarcerating anyone who harms others physically, police officers for example. But when one harms only him or herself or even engages in the sharing of substances with other consenting adults not for profit, expending significant public resources to prosecute and lock them up no longer strikes me as rational.

While I have spent years helping to prosecute and/or judge many non-violent offenders it was yesterday’s chance encounter with someone on the other side of the Bench that caused my most recent re-examination of my judicial philosophy concerning these issues. This person shared with me that he has already done several years in prison for illegal drug sales to and from acquaintances. He works full-time and helps support his children. He is still on active probation. His sentence is one I might have imposed had he come before me.

Each year of prison cost taxpayers near $20,000 not considering the taxes an inmate could have paid in had he been working those years. This person I was talking with is a skillful and willing workman. Of course, many drug users often have difficulty finding a job or showing up for work and holding on to a job. That is where a good probation system is key. Assuming society does not believe non-violent drug users should be imprisoned for life, all such offenders must be released sometime.

I am acutely aware that almost all low-level non-violent drug offenders are not “first timers”. Often parents, clergy people, police officers and friends have tried to help drug addicts for years before formal legal proceedings are filed. Then, many times an offender is given another chance to rehabilitate themselves, usually with generous allowances made for “backsliding”. But, if the offenders are harming mainly themselves, society is only wasting taxpayer resources to “punish” a repeat offender who sins again. I can attest that it is extremely frustrating to have someone who has been given repeated opportunities fall off the wagon. On the other hand, the alternative simply kicks the can down the road and takes resources away from other more pressing public problems.

Please remember I have already admitted I have no solutions. On the other hand, I think, a cost benefit analysis is not unreasonable. At least with the non-violent drug abuser I spent time with yesterday it appears to be the best answer. I do not offer this approach either as a general panacea or a prophylactic for our country’s drug pandemic. But, if we encourage some to become producers instead of consumers of public resources, the ones who are not redirected will be fewer and we will all be better off.

Independence Day

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Lexington Minuteman
Lexington Battle Green, MA

The Fourth of July is called Independence Day with good reason. Our Founders were willing to die for the right to control their own lives. They were not seeking war with the most powerful nation on Earth in 1776. They were not attempting to dictate to King George III how the English should behave. They sought only free will for America to determine its own course. In these troubled times we are now navigating, perhaps a look back to America’s early struggles might be helpful.

We may wish we could ask George Washington or James Madison for advice. But the best we can do is read about past heroes’ courage and sacrifice and try to learn lessons that will help us during our own battles.

For example, one of my heroines is Frances (Mad Fanny) Wright, that fighter for women’s rights, Black rights and freedom from religion who spoke in New Harmony, Indiana on July 04, 1828. Oh, how much we could learn if we could speak with her now. However, we do know she dedicated her life and fortune to eliminating slavery. Had she lived only nine more years she would have experienced the start of the Great Struggle that ended a whole race of Americans’ loss of control over their lives.

Control, isn’t that what matters most to all of us? The visceral need for the freedom to make our own choices is why on that day we now call Patriots Day, April 19, 1775, at Lexington and Concord those suppressed colonists “Fired the shots heard ’round the world”. And in our current political climate when Americans get embroiled in political discussions it sometimes feels as if both sides have muskets at the ready.

When I find myself surrounded by the competing political mini balls, I try to remember this is nothing new. Over the two or three hundred thousand years we Homo sapiens have been around, after air, water, food, shelter and procreation we seem to have two more basic needs: the control of our own lives; and the strong desire to control the thoughts and behavior of others. These two related but directly oppositional impulses apply to groups of people and nations as well. You know, we will each defend to the death the right of our political adversaries to agree with us. But conversations can rapidly turn to confrontation if someone comes down on what we believe is the wrong side of such issues as religion, race, global warming, immigration, war and peace, who should or should not be President of the United States and a thousand other subjects.

The right to control our own lives makes us smile. The desire to control other peoples’ lives can lead to such things as vitriolic statements and sometimes even vicious interchanges in our public and interpersonal interactions. Sometimes today’s discussions about control may center on sexual assault and the “Me Too Movement” or hate crimes and “Black Lives Matter”.

Rape is a terrible crime not because of forced sexual contact, billions of humans have had sexual relations. No, rape is a terrible crime because of the victims’ loss of their right to decide for themselves whether and with whom to have sex. The fear, terror, anger and humiliation caused by losing total control of one’s body is incalculable. It is in itself a life sentence that can lead to permanent bitterness toward and distrust of our legal system much as lynchings can result in an entire race of people living with constant concern about their freedom.

Lynchings, such as those that were committed on the Posey County, Indiana courthouse lawn on October 12, 1878, are a collective denial of another’s right to control their own destiny. And it is not just the victims who lose, but even those who deny justice to others may reap the whirlwinds of retaliation and political correctness.

Wars of aggression, not constitutionally authorized wars for national defense, are our country’s intentional denial of another country’s or people’s right to independently determine their own destiny. One of the main causes of our country’s post-WWII denials of the right of other countries to control their own lives are wars instigated by independent executive action without congressional authorization.

We can each quickly cite evidence of such wars based on false premises and rash executive action. President Lyndon Johnson used the shaky premise of the Tonkin Gulf Resolution to get us hopelessly embroiled in Vietnam. President George W. Bush relied on false intelligence reports that Iraq had weapons of mass destruction and was involved in 9/11. President Bush then precipitously led us into what appears to be an endless and pointless war in the Middle East.  As Pete Seeger’s song “Where Have All The Flowers Gone?” asks us, “When will we ever learn?, when will we ever learn?”

Our Founders’ wisdom of placing the authority to wage war in congress is that such a procedure keeps all of our citizens more closely involved in these grave decisions. And, it requires much more careful deliberation when congress is involved. Also, when we eliminated the military draft, we turned from a citizen minute man type military to a professional and less ecumenical type force. To make the tragic choice to go to war all Americans should feel the direct cost. It is too easy to hire others to impose our will on the powerless. With a professional standing military our armed forces never stand down. And the temptation for any of our presidents to play with these awesome powers as if they were toy soldiers is too intoxicating for most to resist. Of course, the draft is one of the ultimate impositions of loss of control. Our country should only use it when our national survival is truly at issue. And then it should include all able-bodied adult citizens. Not everyone needs to serve on the front lines but everyone can serve somehow.

One of the good things we received from one of our British cousins were John Locke’s Enlightenment philosophies as highlighted by the doctrine of separation of governmental powers. Our independence as a nation has survived great trauma due in large part to our three separate and equal political powers: Executive; Legislative; and, Judicial. We forget this at our peril. Control of our lives is an inherent need for individuals and nations and, if lost, can lead to long-term bad effects for both the invaders and the invaded. Freedom of choice is essential to our personal and national well-being. Our Founders enshrined that opportunity for us in our Constitution and that is what we celebrate on Independence Day as we struggle to afford that right to all of our citizens.

 

Is Anyone Listening?

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One judge bragged he could look an attorney right in the eye the whole time the attorney was making an argument but never hear a word the lawyer said. In fact, that judge was just like the rest of us. Much of what we appear to hear may as well be a foreign language. We smile and nod but are totally unaffected by much of what others try to convince us. And, of course, we all know very little that we say to others has any hope of convincing them to truly agree with us, even as they nod their heads up and down. If you are married, you might feel the truth, and frustration, of this phenomenon.

It is not just the state of my ability to hear that prevents me, and probably you too, from comprehending what someone in a movie, on television or even someone right next to us in a noisy room is saying. Just as a traffic cop continues politely filling out your citation while he does not consider your reasonable explanation, most of us already have our minds made up about practically everything. Therefore, please do not attempt to confuse us with information on the subject at hand.

In many situations it is not our fault that new facts are irrelevant to our decisions. Take our hypothetical traffic cop for instance. He/she often has but a moment to observe some fleeting situation. He/she may have an ill child or a demanding spouse or be behind on his/her rent. What he/she does not have is the time or inclination to debate with you.

The same thing happens with judges. By the time a case gets to court the judge may have already read the file including briefs and depositions. The judge may have predetermined his/her decision and arguments in court are simply something that must be endured, not listened to. Trial judges often believe that is exactly how appellate court decisions are made.

Regardless of your circumstances, you may feel no one is hearing what you want to say. Actually, others may hear us but they just have their minds made up and the competing demands of our busy lives drive out our ability or desire to reevaluate our positions.

That may be why the same sermons get delivered at almost every religious service and why parents have to constantly admonish their children to do their homework. We hear but we do not listen. We see but we do not comprehend. The constant drumbeat of others attempting to confuse us with their thoughts eventually becomes just so much “sounding brass or tinkling cymbals”. 1 Corinthians 13:1.

So the next time you grab someone’s arm and ask intently, “Are you listening to me?”, you can almost certainly assume they are not. On the other hand, you can hope they will at least smile and politely nod in response.

Absolutes

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We begin 2020 with the death of Iranian commander Qasem Soleimani. President Trump ordered the drone/air strike. The President said:

“The attack was necessary because Soleimani was planning massive attacks against U.S. personnel in Iraq and throughout the Middle East.”

America has been heavily involved in the Middle East since World War II. Our role until 1990 was mainly diplomatic with some force of arms as a threat. In 1990 we invaded Iraq and re-invaded Iraq in 2003 although we have not completely disengaged since our first incursion.

After the 911 attacks of 2001 we invaded Afghanistan in the hopes of quelling further attacks by Al-Qaeda members who were using Afghanistan to plan operations in Syria, Iraq and elsewhere. In 2014 America intervened militarily and diplomatically in the Syrian Civil War.

Iranian college students stormed the U.S. Embassy in Tehran, Iran in 1979 and held 52 American hostages until 1981. All were released. The U.S. has had a prickly relationship with Iran since but it has been almost totally a war of words and sanctions.

If we point to 1990 as the metaphorical “Firing on Fort Sumter”, we have been engaged in military actions in the Middle East for 30 years. The strike on Soleimani may expand and extend our involvement. A calculation of costs and benefits of our 30 years of war is far beyond my knowledge. How does one evaluate the lives lost when there is no accounting for them? Did we eliminate terrorists or innocents, a future dictator or someone who might find a cure for cancer? We cannot know. We surely have expended trillions of dollars of national treasure, but would we have spent it any more wisely at home?

Over the last 30 years what have we done with our lives and treasure within our own country? More particularly what have we, and I mean me too, accomplished in our system of criminal justice? If America seeks to punish foreigners for transgressions and seeks to force other countries to behave as we think best, what are we doing and how have we done on imposing justice upon and modifying the behavior of our fellow citizens whom we convict of crimes? These issues, while always at play, rise up as salient as the New Year ensues.

Instead of war with Iraq, Afghanistan, Syria and Iran can we think about the legal system and Chris, Danny, Jackie and Jason? Is it logical to compare the behavior of countries to the behavior of individuals? Is it relevant? Is it meaningful or just another method of hoping instead of helping?

Each of the people named were at one time considered by our legal system to be in need of rehabilitation, much as America thinks of those named Middle Eastern countries. And while I have dealt with thousands of our fellow citizens in our legal system as lawyer, prosecutor and judge, this New Year season I have been musing about these four above-named survivors of my attempts at punishment and rehabilitation. In essence these four were given the opportunity to modify their own behavior and they did. Each is now a productive citizen and of more import to me, each is now my friend. Do I deserve any credit; no. Do they; yes.

But if society had continued to demand a pound of flesh from these, and so many others who have turned their lives around, each of them might have returned our slings and arrows with ballistic behavior. Yes, society held each to account just as we must do with other countries. But giving individuals and nations an opportunity for redemption might be worth contemplating.

Yuletide

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Yuletide is the Germanic term for the season that begins with the Winter Solstice, usually about December 21 or 22. For 2019 the fleeting moment when Earth’s true North Pole was at its maximum tilt away from the sun occurred on Saturday, December 21 at 10:19 p.m. Central Standard Time. The winter or hibernal solstice marked the twenty-four hour period of the calendar year with the least sunlight and the beginning of longer daylight days. Humans probably have always celebrated this event. It is the true “new” year.

For many people the end of the year’s gradually darkening after the Summer Solstice, about June 20 or 21 each year, is a time to reflect on the past and hope for the future. One need not be superstitious to experience a period of introspection when darkness turns to light. Nature provides the perfect metaphor.

For Peg and me as leftovers from the turbulence of the 1960’s retrospection often includes the days of Jim Crow and America’s legal system. These painful recollections were once again seared into our psyches when we happened to come upon the 2018 movie Green Book while surfing television shows for something of value, that is, something other than the cacophony of vile opinions claiming to be news.

Green Book is based on events from 1962. Dr. Don Shirley (1927-2013) was an African-American pianist who decided to engage in his own sociological experiment concerning racism in America. Instead of designing a laboratory environment where rats are manipulated and observed followed by conjectural opinions, Shirley literally put some real skin in the game, his. He hired a white Italian-American from New York City to be his driver and event manager then, with a white cellist and white bass player, the four of them dove into America before the Civil Rights Act of 1964. It was not pretty. Believe me, I remember.

I was born in 1943 in the legally segregated state of Oklahoma. I lived the good life of a middle-class white kid and young man with hardly a thought about why everyone I went to school or ate out with looked like me. If I ever had a passing observation of this phenomenon until after Brown vs. The Topeka Board of Education in 1954 I do not recall it.

Then in 1957 Oklahoma used “all deliberate speed” to comply with the United States Supreme Court’s decree that its previous decree that Separate but Equal was no longer constitutional. Turns out the Judicial Branch is no more virtuous than the other two. Not surprised? Me neither.

Anyway, the public schools of Oklahoma initiated their version of integration and the “colored” kids from Booker T. Washington School across Bird Creek from the rest of us came to school with the rest of us. Of course, public transportation, restaurants, restrooms and water fountains remained pristinely white until after the Civil Rights Act of 1964. Jim Crow still reigned.

Green Book transported Peg and me back to those not so thrilling days of yesteryear. Don Shirley was kept back by the dominant white culture to those dark days symbolized by the Winter Solstice. Perhaps whoever erected the Stonehenge paean to the coming light had their own demons to quell. My guess is there is in human nature a certain element of dark mentality that is constant and that each generation must re-learn and deal with that fact.

Of course, for one to recognize the darkness in our souls we must have the ability to appreciate the possibilities of the coming light. When the light finally expels the dark, if it ever does, we will be able to dispel the competition between good and evil by not just hiding from the long night but reveling in the light.

Happy New Year!

Legal Slight of Hand

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After last week’s scintillating column on Constitutional Law I know you are eagerly awaiting promised round two on politics and the United States Supreme Court. Of course, America’s judiciary eschews any notion that court outcomes are sometimes a product of the political views of the judge or judges who decide the cases. At the National Judicial College where I have served as a part-time faculty member since 1995 one of the guiding principles is the effort to have completely impartial judging of all cases. That is a proper goal. However, is that goal always achieved? Let’s take a look behind the black robes of history starting with America’s most famous case, Marbury v. Madison, decided in 1803 a mere sixteen years after the end of the Constitutional Convention that occurred on September 17, 1787.

You may recall that last week we had sought guidance on understanding the U.S. Constitution from law professor Michael Klarman who spoke to the Indiana Graduate Judges Seminar in French Lick, Indiana in June 2019. In his book The Framers’ Coup, The Making of the United States Constitution, Professor Klarman gave an in-depth analysis of the political warfare that produced our Constitution. A similar phenomenon occurred when the fourth Chief Justice of the Supreme Court, John Marshall, blatantly grabbed for the U.S. Supreme Court the immense power to declare whether a particular law was constitutional. Marshall deftly, and unethically, used the virulent hatred between those early Americans who favored a strong central government, the Federalists, and the anti-Federalists who preferred a more citizen-centered national government. John Adams was our second president and he was one of the strongest proponents of a strong central government. Adams was defeated in an election by our third president Thomas Jefferson in a bitterly fought campaign. John Marshall served as Adams’ Secretary of State and Marshall and Jefferson despised one another. Just before Adams’ term as president ran out he appointed John Marshall to be Chief Justice of the U.S. Supreme Court. Marshall was succeeded as Secretary of State by James Madison who, incidentally, later became our fourth president.

Just before John Adams left office he also appointed numerous judges and justices of the peace as a sharp stick in the eye of the incoming president Thomas Jefferson. William Marbury, a wealthy businessman and vocal opponent of Jefferson, was one of Adams’ justice of the peace appointees. While Secretary of State, John Marshall had the duty of signing Marbury’s certificate of appointment and delivering it to Congress. Marshall failed to get that done and the task was left to new Secretary of State James Madison. But President Jefferson, who was angry at John Adams for the last minute appointments, ordered Madison to not deliver Marbury’s certificate. Marbury then filed a law suit in the Supreme Court seeking to have the Court order Madison to give Marbury the certificate of appointment.

If all this intrigue seems rather petty and even perhaps reminiscent of our current political climate involving nasty actions on all sides, well, the pettiness turned out to have a momentous affect on every court case in America after 1803. The squabble may have resembled a tempest in a teapot but Chief Justice John Marshall’s highly political decision in the case resulted in a federal judiciary of immense power, a power not contemplated by many of our Founders and Framers of our Constitution.

Because of his earlier direct connection to Marbury’s appointment John Marshall should have recused himself from the case and should have had no part in it. However, Marshall seized upon Thomas Jefferson’s hatred of John Adams to trade what Jefferson wanted, that is to prevent Adams’ last minute appointments, for a huge leap toward a strong centralized government where the Judicial Branch would have power over decisions of both the Legislative and Executive Branches’ decisions.

What John Marshall and two more members of the then five member Supreme Court decided was that the legislative act that purported to give jurisdiction over cases such as the one brought by Marbury violated the Constitution therefore the Supreme Court had no authority to order Madison to give Marbury his certificate. It might appear to have been a win for Jefferson over Adams, but it was the ultimate Pyrrhic victory as Marshall and all future courts used it as a nuclear weapon in the war between the Federalists and anti-Federalists. Supreme power over what the Constitution meant has resided in the Supreme Court ever since 1803.

For example, in Dred Scott v. Sandford (1857) Chief Justice Roger Taney, a former slave owner, and the U.S. Supreme Court ruled Negro slaves had no rights that the Constitution was bound to protect. Then in George Bush v. Al Gore (2000) a bitterly divided court led by Chief Justice William Rehnquist who had been appointed by Republican President Richard Nixon to be an associate justice then by Republican President Ronald Reagan to be Chief Justice handed the presidential election to Republican George Bush.

So, as America’s judiciary proclaims it must remain independent from outside influences and look only to the law and the facts, it might appear to some cynics that the blindfold often slips. Anyway, I am certain you probably feel the same sense of relief in finishing this column that I did in finishing law school and Professor Klarman’s book. On the bright side however, the rest of your day is bound to get better.