Friday, March 16, 2012

Justice v. Process

Recently I was watching a fascinating documentary on PBS, "Slavery by Another Name," about forced servitude of African-Americans in the post Civil War South.  The program covered convict labor, and how men would be arrested mainly to have their labor sold to private contractors, and peonage ("debt-slavery").

Peonage was criminalized in 1867, when the Congress outlawed the practice, which was common in New Mexico at that time.  In the early 20th Century, during the Theodore Roosevelt administration, there was a series of trials of men for forcing other men into peonage.

One of those men, John W. Pace, was convicted and sentenced to jail. His theory on appeal was that, as peonage meant holding people in slavery for debts owed, and none of the men he enslaved actually owed him anything, he was not guilty of peonage but of slavery, which was not illegal at the time.*

Part of me is completely outraged by this, which I suspect is the reaction of most people.

Part of me is impressed.  Those lawyers were doing what every lawyer is paid to do, representing their client zealously within the bounds of the law.  It may be obnoxious, but it was the right thing to do.  This standard is the basis of our justice system.  The level to which some attorneys fail to reach that standard, as can be seen by a lot of the criminal cases which end up before the Supreme Court, is saddening.

It has never been the case that the system will always result in the guilty being convicted, nor is it the case that everyone brought before a judge or jury will be guilty.  People do get away with things sometimes.

But the system shouldn't.

I think most people would say that finding innocent people innocent and guilty people guilty is the standard of success by which process should be measured, not the other way around, that following due process by definition gives a just result.  I wonder if that is a quirk of being trained as a lawyer, that makes it even possible for me to view it otherwise.

I know that in reality due process is all we have.  I admit that truth about guilt or innocence in any given case can sometimes be difficult to ascertain.  But it also worries me that there are people who seem to conflate the two.

Was it just for Pace to escape punishment for what he did to so many men and women?**  Not in the slightest.  Even had he not been pardoned, he might well have had his conviction reversed.  I would have been unhappy, but not outraged by reversal, if the law was what his attorneys claimed. (That said, I would have strongly supported a change in the law making sure others could not escape paying for similar crimes.)   I am not at all that bothered by the fact that O.J. Simpson walked, even though I think it more probable than not he killed his ex-wife.***

And that bothers me.

The system is imperfect, and I worry sometimes that I stop seeing the forest for the trees.  When I was a first-year law student, I asked a civil procedure professor where justice fit into the picture. "It doesn't," he replied brusquely.  "It is a game.  It is about following the rules and still doing better than the other guy.  If you worry about the justice of the result, you will burn out very quickly."

Okay, so that was civil procedure.  But my criminal procedure professor, a former public defender,  told us something similar: that she was most scared in cases when she was sure the defendant was innocent.  Otherwise, it was a contest: you did the best for your client, and what happened happened. But if the client was innocent, and you screwed up, you could lose someone their liberty or even their life.

I think that is why the Antiterrorism and Effective Death Penalty Act bothers me so much.  In the haste to correct what is seen as injustice (because people weren't being executed in a "reasonable" amount of time), it added a layer of process that seems almost designed to occasionally thwart justice in the other direction.  Conservatives decry the use of Constitutional defects in procedure to reverse convictions or sentences as being "technicalities," but states are just as willing to use "technicalities" on the other side. (This is especially true of time limitations: several cases have come before the Supreme Court in which the failure to meet deadlines was the fault of the lawyers and not the defendants, and states have argued that the incompetence on the part of the attorneys was irrelevant.)

I don't know what the answer to the justice versus process problem is.  I don't even know quite where I am going here, other than to bookmark an issue which has been bothering me for some time now.

There is a reason the quote from Micah is the first of the "Words To Live By."  Regardless of where I am in my faith  journey or my belief in God, these words form the basis of my social and political beliefs.  I am an idealist -- some would say irrationally so -- and "doing justice" matters to me.  Immensely.

But as I grow older, I am less and less sure of what that means.

* I'm not sure exactly how their argument would go, but I imagine it would be something like this: the 13th Amendment did not create criminal accountability, simply eradicated a previously existing property right.  Absent an actual statute making slavery a crime, it wasn't.  All of this became moot when Roosevelt pardoned Pace and the other men convicted in the peonage trials. Don't worry, slavery was explicitly criminalized in 1909.

**The question of the justice of political pardons is an entirely different issue.

***Other aspects of the O.J. infuriate me:  the refusal of the prosecution to seek the death penalty.  For whatever reason they did not -- and the ones I have read include because he could hire the best lawyers and that they would never have gotten the death penalty given his popularity -- it was unjust.  Any other person accused of the same crime in LA at that time would have faced the prospect of the execution chamber.  

I am also outraged about cases where juries or judges clearly acted in defiance of the law and the evidence to acquit people who should not have been.  I do not think I am going out on a limb to say that some of the results in the trials of individuals for killing civil rights workers in the South, where local all-white, all-male juries, acquitted their cronies were unjust in the extreme.

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