• Skip to primary navigation
  • Skip to main content

James M. Redwine

  • Books
  • Columns
  • 1878 Lynchings/Pogrom
  • Events
  • About

Justice

When Mercy Seasons Justice

April 15, 2022 by Peg Leave a Comment

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

Share this:

  • Click to share on Facebook (Opens in new window)
  • Click to share on Twitter (Opens in new window)
  • Click to email a link to a friend (Opens in new window)

Filed Under: America, Democracy, Gavel Gamut, Indiana, Internet class, Judicial, Justice, National Judicial College, Oklahoma, United States

Hot Lead or Cold Water

November 29, 2021 by Peg Leave a Comment

At the Washita Battlefield, November 21, 2021. Photo by Peg Redwine

Charles Brill’s account of the November 27, 1868 incident between Black Kettle’s Cheyenne tribe and U.S. 7thCavalry troops led by Lt. Col. George Custer is entitled, Conquest of the Southern Plains: Uncensored Narrative of the Washita and Custer’s Southern Campaign. Brill’s 1938 publication relied on eyewitness accounts from aged Indian survivors of the conflict. Brill personally took Cheyennes Magpie and Little Beaver and Arapaho Left Hand along with government interpreter John Otterby, a.k.a. Lean Elk, to the site of the attack. This article relies on the 2001 republication of Brill’s accounts by the University of Oklahoma Press re-titled Custer, Black Kettle, and the Fight on the Washita.

The fertile Washita River valley area on the western edge of Indian Territory (Oklahoma) had been a common peaceful wintering ground for numerous Indian tribes for countless years before 1868. There was an abundance of water, game, shelter and vegetation. It was also an area set aside for the Indians in several treaties with the United States between Black Kettle’s Cheyenne and other tribes. On the bitterly cold, snow-covered morning of November 27, 1868 the Indians’ only concerns were keeping warm and tending to their horses. Then Custer’s seven hundred mounted soldiers came charging at the sleepy Indians from all sides with rifles blazing and sabers slashing.

Black Kettle & Medicine Woman Later Crime Scene. Photo by Peg Redwine

Black Kettle was alerted by a woman who had been tending to the horses and first saw the approaching soldiers. When she yelled out “Soldiers, soldiers!”, Black Kettle fired a warning shot with his rifle to awaken the camp. Then Black Kettle drew his wife, Medicine Woman, up behind him on his pony and attempted to flee as he and Medicine Woman shouted warnings to the camp. He and Medicine Woman were then shot and killed. Magpie, one of the eyewitnesses Brill relied upon, heard Black Kettles’ warning shot and exited his lodge just as he heard a trumpet blast from the nearby trees and then saw the mounted soldiers charging into the village from all sides. Magpie was shot in the leg but managed to escape death by entering the freezing water and hiding in the brush along the banks.

As reported by Brill at page 159:

“From every side came the heavy report of carbines. Occasionally an Indian rifle answered. But these were notable for their infrequency. So sudden had been the attack, only a few of the red men had opportunity to arm themselves. Most of those who did so had only bows and arrows. They were powerless to offer serious resistance. Flight was their only objective.

Those villagers whose tepees stood nearest the stream fared better than their friends in the center and on the south side of the camp. First to dash through the icy waters of the Washita and scramble up the opposite bank found themselves running into scouts and sharpshooters who had deployed in the timber there. They also encountered troopers, mounted and dismounted. Seeing escape shut off in that direction, the fugitives accepted the only avenue left open to them, the channel itself. It was misery to wade its ice-fringed waters, but it was either that or bullets.

Women and children, as well as braves, plunged into the stream. Most of them were scantily clad. Many were without moccasins on their feet. Frequently the water reached to the armpits of adults who had to carry the children through these deep pools to prevent their drowning. Desperately they splashed their way beyond the lines of their enemies.”

Sometimes the fog of history eventually is pierced by uncomfortable facts. The Washita massacre was originally reported as a great military victory over savage foes by courageous heroes. Those reports originated from the “heroes”. The facts managed to slowly ooze out over a great deal of time. Those facts established the betrayal of morality and violations of treaties. They do not tell us, “Why?” The reasons may be explained by Pawnee attorney and scholar of law and history Walter R. Echo-Hawk in his book on bad court cases involving Native American treatment by the dominant white culture.

In the Courts of the Conquerors, The 10 Worst Indian Law Cases Ever Decided contemplates the roots of the doctrine of Manifest Destiny and its raison d’être, The White Man’s Burden:

“A popular justification for colonialism among the colonizing nations was the white man’s burden. Originally coined by Rudyard Kipling, the term is a euphemism for imperialism based upon the presumed responsibility of white people to exercise hegemony over nonwhite people, to impart Christianity and European values, thereby uplifting the inferior and uncivilized peoples of the world. In this ethnocentric view, non-European cultures are seen as childlike, barbaric, or otherwise inferior and in need of European guidance for their own good. As thus viewed from European eyes, colonization became a noble undertaking done charitably for the benefit of peoples of color.” See p. 16

The concept of exterminating Native American culture as justified because it was replaced with the blessings of Christianity and civilization is hardly a new idea. The Romans by force of arms visited their supposed superior culture on “lesser” peoples as have many dominate societies for thousands of years. The germ of “destroying a culture to save it” is easily discovered by any powerful society that wants to take what some weaker society has. However, that there was ample precedent for the massacre at the Washita does not expiate Custer’s assault and does not obviate the moral imperative to remember it.

Washita Battlefield. Photo by Peg Redwine

Share this:

  • Click to share on Facebook (Opens in new window)
  • Click to share on Twitter (Opens in new window)
  • Click to email a link to a friend (Opens in new window)

Filed Under: America, Events, Gavel Gamut, Justice, Manifest Destiny, Massacres, Military, Native Americans, Oklahoma, United States, War Tagged With: 7th Cavalry, Black Kettle, Charles Brill, Cheyenne, Christianity, destroying a culture to save it, George Custer, James M. Redwine, Jim Redwine, Manifest Destiny, Medicine Woman Later, Romans, Walter R. Echo-Hawk, Washita Battlefield, Washita River

© 2022 James M. Redwine

 

Loading Comments...