This was to be the big close exhorting you to buy my book. I would have reminded you of all the information contained therein, the hypos/examples employed to put a human face of the people we served, the political and judicial obstacles that we confronted, the judicial decisions and political indifference that prevents change, the analytic constructs I used to support my assertions, and finally the big crescendo - my call for Justice for underserved indigent litigants.
It would have been brilliant. But with all that's going on in our nation, I don't feel like being "brilliant." I want to sell books to inform and enlighten, and to raise funds for financially stuggling legal services organizations, but I don't feel like selling books. Somehow, in these times, it feels sordid to do so.
By now you'll either buy the book or you won't.
My theme to this post, as the title suggests, is Justice. When I conceived of this piece, I had a limited view of Justice, limiting it to the issue to our judicial systems. However, the events of the past several months have brought home, in stark relief, how narrow my view was.
In my book, I adopted Michael Harrington's view that the poor were "invisible" to the rest of us. Because of that invisibility, we need not have concerned ourselves to their well-being: whether people have a place to sleep, enough to eat, adequate incomes on which to live, health care for kids, an opportunity at a decent education. Add to this list the issue I was concerned with - a fair opportunity at Justice before the law.
As it turns out, I was wrong. The poor are not merely invisible, they are disposable. According to recent statistics, nine percent of the poor are white, the other 91% of the poor are black, brown, and Asian. Right away, poverty is not a "white" problem but instead a problem of the "other" in our society. Racism runs deep in the American cultural psyche.
There is a "debate" over whether "Black Lives Matter" or "All Lives Matter." To be clear, the latter assertion is morally correct, but the former assertion reflects the reality on the ground. It is black people being murdered, not a cross-section of society. We all know the latest outrage of Jacob Blake who was shot seven times in the back, at point-blank range, in front of his three children.
What will likely come of this, if anything comes of this, is the rogue cop narrative. Maybe he had a propensity for violence, maybe it will be discovered that he held radical beliefs, or maybe all this will be blamed on his poor training. Or maybe it will be learned that this was the officer's first lack of judgment and control. Either way, the officer will likely be left alone to swing in the winds of Justice.
None of that matters. The officer wasn't wearing civilian clothes, walking on his own time down the sidewalk, who then spied a commotion and tried to help. He wore a police uniform, he had a police badge, he arrived when called in a police vehicle, and he used a department issued weapon. He had a professional duty to try to assess and diffuse the situation. He failed.
What happened in Kenosha may have been an individual failing costing Mr. Blake, as so far reported, the permanent use of his legs. But to the broader community, this was official state action. To the disposable people living distressed communities, whether individual or official action is a distinction without a difference.
On April 5, 1968, the day after Martin Luther King, Jr. was assassinated by a white man, Robert F. Kennedy spoke before a group of Cleveland businessmen on the topic of violence in America. He began speaking about the physical violence of the bullet and bomb in the night, but then veered onto another form of violence: the violence of institutions.
The violence of institutions comes in many forms. It's the subtle, and sometimes not so subtle, violence of first responders who enter distressed communities like an army of occupation. It's underfunded schools in distressed communities while a disproportionate share of educational funding is directed to economically well-off communities. It's zoning and banking policies that limit the availability of affordable housing. It's the decreasing number of adequately funded benefits to assure a subsistence standard of living. It's too often the struggle to find and purchase food that is necessary to for a healthy diet. It's the overall lack of economic opportunities in distressed communities.
And it's the justice system - both criminal and civil. If you're an indigent accused of a criminal offense, you're entitled to an appointed attorney through most stages of the process. That's because of the Court's interpretation of the Sixth Amendment to the Constitution which recognized the inherent unfairness of an unskilled, untrained individual defending himself against the full weight of government action. Even with an appointed attorney, given the greater resources available to the government, it's still an unfair contest, but it is better than it was.
But in civil matters, no attorney need be appointed to represent an indigent civil litigant. No recognized Sixth Amendment protection. No recognized "state action." It's a civil dispute between parties in which the state, through the civil court system, is at most a referee or more often than not a disinterested participant.
What. A. Krock. Tell that to the party the court just ordered removed from his home. Tell that to the party whose possessions are impounded by a sheriff executing an eviction. Tell that to a parent who lost custody of her children. Tell that to the recipient whose public benefits were cut off. Tell that to indigent who has to stand before a court having to advance or defend an interest vital to his existence.
If the criminal judicial system is still unfair, in many ways the civil system is unconscionable. If a court issues a bench warrant and the police pick you up, that's state action. If you're placed in a cell for contempt of court for failure to pay a fine, that's state action. When you're benefits are denied that too is state action. And when a school fails to provide necessary services to a special need child, that is state action.
Having a system that permits and supplies appointed attorneys to represent indigent parties will not solve the problem, but is a good start to an overall solution to systemic poverty and racism. It will ease at least some of the violence of institutions.
So to those who say that whether because of race or indigency some people are disposable, I say rights are not commodities to be dispensed or withheld on whim. In the final analysis, all people want Justice and what is Justice if not fairness? People want to be treated fairly in all matters, whether it be housing, education, income, health or any other of the mundane daily matters the rest of us take for granted. All people in distressed communities want is what we all want - a fair opportunity at whatever is left of the "American Dream."
Rights are not situational, they are inherent to each of us. It is what we, as a people, profess to believe. It defines what we once believed and often clumsily strove to implement. It is the belief that we once advanced for those unable to advance it for themselves. It is the belief that once had us act to protect people too defenseless to defend themselves. And it is the belief that we made colossal mistakes in the past, compounded those mistakes over time, and no need to make reparations for the harm visited on others. That too is Justice.
It is fairness, which leads to Justice, which in turn defends our inherent rights. And rights are not commodities.
Comments