by Stephen Dixon

A major theme both here at the Forum and in American justice theory is the question of the victim’s role in securing moral justice through the courts. While the legal system may enforce its own brand of justice in the form of monetary damages or prison sentences, this does not always align with the victim’s goals. For example, if a mother’s child is murdered and she is not satisfied with the judge’s sentence, has justice then truly been achieved? Surely a justice system centered purely around a victim’s goal has its critiques, but the juxtaposition is nonetheless useful to illustrate the often vast divide between legal and moral justice.

If the courts cannot achieve these ends, then what other avenues can governments pursue to satisfy families of victims? One interesting approach in the transitional justice process of post-Agreement Northern Ireland has been the Historical Enquiries Team, a division of the Police Service of Northern Ireland devoted to reexamining 3,000+ homicides that occurred from 1968–1998 and which were attributable to the Troubles. While the HET has goals beyond moral resolution in the families of the dead–examining new evidence, recommending new police procedures, etc.–a substantial element of the HET’s work centers around the reports it compiles for every case. These reports give a full overview of the circumstances of a death and sometimes may contradict what the victim’s family had believed for decades. And in rare cases, new evidence has led to homicide convictions.

Of course many families would not feel a sense of moral wholeness after merely reading such a report, and who are any of we to smugly say that the legal system of securing justice has done its best on their behalf? But in many of these cases, families were never told the circumstances of their tragedy and were left in the mire of never knowing why their loved one fell victim to the Troubles. Sometimes there were legitimate reasons for this–too much discussion of investigation methods would give the IRA a dangerous advantage in the violent conflict and vice versa–but nonetheless the feeling of abandonment was there. If we believe that recognition is a remedy to suffering and a basic human desire, then at least the Historical Enquiries Team has achieved that element of moral justice.

The question of the victim’s role and related theories of our most basic instincts in what justice should look like are discussed in Forum director Thane Rosenbaum’s new book, “Payback: The Case for Revenge“.

Appearing in London at a panel discussion hosted by the Observer, Eugene Jarecki and David Simon criticized the recent legalization of marijuana as an insufficient attempt to curb the war on drugs. The Forum recently hosted Jarecki at the 2012 Forum Film Festival for the screening of his drug-war documentary, The House I Live In.

Simon, creator of the acclaimed HBO series The Wire, described the legislation passed in Colorado and Washington as ignorant of the war on drugs’ real victims: the urban poor, “the excess Americans.”  Here is an extended clip of an interview concerning the drug war and the London panel, via The Guardian:

– SD

by EC

Movies, television, and other media outlets are a great escape. In modern society, when we are stressed and overwhelmed, we turn to media to get away from the world, dull our senses, and mute any pain and suffering that might be around us. Usually (not always), movies have happy endings. There is momentary discomfort, perhaps when a villain is victorious for a fleeting moment in a film, or when a death occurs. But in the end, many movies and other forms of media are intended to make us feel good. Because one goal of modern media is to promote this sense of “good-feeling,” even some documentaries that strive to feel realistic, do not do justice to atrocities that they may attempt to depict. Rather according to Ervin Staub, widespread portrayal of tragedy can sometimes cause desensitization to atrocity. Staub calls this is a “distancing of the moral mindset;” the ability of a viewer to detach from atrocity that may be part of a story. To avoid feeling it acutely and emphatically as it should be felt. The film, Rising from Ashes, about the Rwandan Cycling team, is an exception. It is the perfect example of a film that does not allow its viewers to separate themselves from the atrocities that it depicts. It manages to truthfully and artfully tell a story that involves triumph, but that does not ignore pain and suffering, and does not censor it. The film promotes a sense of satisfaction and fulfillment that is coupled with a realistic depiction, which does not hide atrocity and pain.

Rising from Ashes tells the story of a nation, Rwanda, riddled with atrocity due to a massive genocide, and how a few determined people from the United States decided to help start a professional cycling team there. Narrator Forest Whitaker states that “The most devastating circumstances can yield the most powerful forms of hope.” However, in this particular film, the focus is not just on triumph, and the hope that is portrayed is not at the expense of conveying the reality of the atrocity that the members of the cycling team faced; most of them having lost many family members at a young age in the genocide. Though they are now cyclers, throughout the film they never cease to be Rwandan; their identity as survivors of atrocity is at the forefront of the story. Through both imagery and personal interviews, the producers of this film artfully capture pain, suffering, and perseverance, but never allow the audience to turn a blind eye, or distance their “moral mindset” from the important historical backdrop of how the cycling team evolved. As Jock Boyer, former professional cyclist and the coach of the Rwandan team stated: ““Cycling is suffering. You cannot be a cyclist without going through an immense amount of pain.” This film, Rising from Ashes, shows that triumph and hope can be portrayed alongside atrocity, and that media does not always permit a “distancing of the moral mindset.”

by Brandon J.

Of the various factors which inevitably influence (and sometimes pervert) the fair administration of justice within the criminal court system, the Supreme Court’s landmark decision in Gideon v. Wainwright could optimistically be described as a step toward more equal footing in regard to representation by counsel for defendants. The Court held that right to the guarantee of counsel is ‘fundamental and essential to a fair trial’ and thereby obligatory upon States under the 14th Amendment. The Court specifically quoted a previous decision recognizing “the right to the aid of counsel is of this fundamental character.” (372 U.S. 335, 342-43 (1963), quoting Powell v. Alabama, 287 U.S. 45, 68 (1932).

But what of the ‘character’ of counsel guaranteed under the 6th and 14th Amendments? The Court made no representations as to the quality of counsel due a criminal defendant, and rightfully so. Other safe guards exist for defendants, namely the claim of ineffective assistance of counsel. Moreover, only the most naïve idealist could hope to achieve a system under which every defendant would be entitled to and receive uniform efforts by and assistance from counsel. Still, there is something to be said when the most recent standard of effective counsel, as provided by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), finds no ineffectiveness by defense attorneys who fall asleep during the cross-examination of their client (Muniz v. Smith, 647 F.3d 619 (6th Cir. 2011)), suffer from alcoholism during trial (People v. Garrison, 47 Cal. 3d 746 (1989)), are suspended immediately after trial for poor mental health and would have been suspended prior to but for false promise to secure co-counsel (Bellamy v. Cogdell, 974 F.2d 302 (2nd Cir. 1992)), or are themselves convicted felons, only representing defendant as part of ordered probation despite lack of comparable prior experience (State v. Willie, 595 So.2d 1149 (La. 1992).

This low standard of counsel effectiveness is particularly concerning given the current state of affairs of public defense attorneys’ offices nationwide. Overworked and underpaid, these lawyers are usually the only counsel available to the approximate 80% of criminal defendants who cannot afford private attorneys. Yet with 90-95% of clients pleading guilty, it’s fair to wonder how effective this arrangement is for indignant defendants. Turns out, the American Bar Association has recognized significant deficiencies with the delivery and competence of indignant defense services and called for reform – in 2005. In its report, the ABA recognized several major, nationally prevalent factors negatively influencing public defense services, including poor compensation, excessive caseloads, and inadequate funding.

In regard to wages, the ABA report found that in many states, the starting salaries for public defense attorneys were very modest, and thereby deterred potential lawyers from such careers. Moreover, only beginning in 2010 have public defenders become eligible for government loan forgiveness. A more recent article suggested that “decent” rates for public defenders hovered around $65 per hour, and that some states actually capped the pay of public defenders. In regard to court assigned private attorneys, the rate wasn’t any better. As could be expected, the lowest bidding firms are often awarded such contracts, but in order to make a profit, they had to spend as little time as possible with each client. For instance, in New Orleans, attorneys had an estimated 7 minutes to spend on each case. In Alabama, 42% of defendants with assigned attorneys plead guilty on the day they met their attorney at arraignments. Additionally, the ABA found that in Illinois, for example, the going rate for cases assigned to attorneys hadn’t changed in 25 years, and that in Rhode Island and Massachusetts, the hourly rate ranged from $30-40 per hour. While the Department of Justice disbelievingly maintains that public defenders perform on par with private attorneys, it has admitted that the performance of assigned attorneys fares worse.

Not only are public defense attorneys underpaid, they have to manage ridiculous caseloads. The most recent recommendations for caseload limits were provided in 1973. Not only has the complexity of cases increased since, but so too has the number of incoming cases. However, the number of attorneys working in such offices has remained relatively stagnant. The ABA reported that attorneys in several states were handling twice as many cases as 30 years ago without additional lawyers and they exceeded the recommended caseloads by 35-50%. Unfortunately, despite the modest decline in total incoming cases in the past 6 years, these caseload statistics have held stable.

Perhaps most disconcerting is the discrepancy between government funding for prosecutors versus public defense attorneys. One analysis found that the expenditures per capita on criminal legal aid in England was $34 per person, compared to $10 in the US. Even worse, 29 states averaged expenditures of less than $10 per capita. Reflected as a percentage of GDP, a 2006 comparison showed that the U.S. spent less than the Ukraine, among many others. As a result of this insufficient funding, the ABA noted that many public defender offices suffered from inadequate training, outdated technology, and scarce expert witness funds.

In Gideon v. Wainwright, the Court held, “From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.” 372 U.S. 335, 344 (1963). Yet how can a defendant every hope to stand equal before the law, when the government charged with enforcing it greatly outspends in favor of the prosecution? In 2007, the national budget for prosecutors exceeded that of public defense attorneys by $3.5 billion. The next year, for every dollar spent on public defense, corrections cost taxpayers $14.

Although there are many factors contributing to the growing prison population, that last statistic depicts a society more concerned with locking defendants away than establishing guilt. And although the ABA released its findings and recommendations 8 years ago, little if anything has changed for the better. Indeed, as politicians continue to struggle over how to allocate government money, there is increasing concern that the rights of indignant criminal defendants, stigmatized from the moment of arrest, will be further marginalized. The end result is a system that perpetuates poverty and recidivism and thereby only further contributes to its own ineffectiveness.

by GJ

Professor Thane Rosenbaum, in his book “The Myth of Moral Justice” criticizes the American legal system for its inability to truly make an injured party whole – to really find a remedy and solve the problems of victims. Why? The single-minded nature of our legal system fails to recognize the concept of moral justice. Presently, our system is seemingly limited in the damages it awards – damages typically characterized by incarceration or monetary compensation. “Legal Justice”, or the determination of what is deemed within the boundaries of the law, is the primary goal of our present system, yet that oftentimes fails to adequately meet what the victim actually needs – moral compensation. The mother of a drunk driving victim is not likely to find any amount of monetary compensation alone to be enough justice. Instead, an apology, a chance to tell the injurer about the life of her child, or a sworn heartfelt vow to never do it again, is more likely to put her on the path of “wholeness”. Yet, the law is not built for that type of remedy.

However, judges – in their roles as guardians and interpreters of the law – have increasingly are increasingly adding an element of morality into their judgments. In Pennsylvania, a judge ruled that a woman who killed a man in a head on collision must carry a photograph of the teacher in his coffin as part of her probation. In a report by the Daily Beacon, prosecutors stated that, in June 2002, she was drunk and on the phone when she hit Glen Clark and his pregnant wife. She was sentenced to 30 days in jail plus house arrest and ordered her carry a picture of the family’s choosing as part of her probation. The mother chose a picture of Clark in his final resting place- his coffin. When the woman protested, the mother retorted “That’s where she put him; that’s what she did for him. I’d just shut my mouth if I was her.” In the end, the judge ordered the woman to carry the picture. In Cleveland, Shena Hardin was caught driving on a sidewalk in an attempt to pass a bus unloading children. Not only did the Judge Pinkey Carr sentence her to hold up an embarrassing sign that read “only an idiot would drive on the sidewalk to avoid a school bus”, but when he found her demeanor unsatisfactory he personally supervised the second day of punishment. In Wisconsin, Racine County Circuit Court Judge Tim Boyle, gave Corey Curtis, a man who owed over $90,000 in back child support after fathering 9 children with six different women 3 years probation on the condition that he does not have any more children. The judge found

All three of these judges went beyond a simple legal judgment and issued moral ones. Each of them in recognizing the shortcomings of the American legal justice refused to be limited it by it. Their judgments intended to remedy, solve, and truly keep the bad behavior from repeating itself- a practice that quite frankly the American legal system needs more of.

by Shannon E.

“Accidental Racist” is a song of Brad Paisley’s newest album Wheelhouse, this will not be a review of the song, because I wasn’t actually able to hear the song since all links have been removed due to the controversy it has stirred. In his song Brad Paisley sings about experiences that he has had and the feelings he has about being caught between feeling proud of his southern roots and celebrating that pride in a way that isn’t offensive to others. The song also attempts to address the misunderstanding and prejudices that exist between blacks and whites in America. To further drive home this point Paisley even tapped rapper LL Cool J to add a feature to the song.

Since it’s release Paisley and LL have been criticized for the song and its sad attempt at trying to address years of racial tension in America by ultimately suggesting that we just forget about the past. The song to me clearly brought up issues on where race relations are in the US as well as where discussions on race relations should be headed, but what really stood out to me was how it related to nations beginning to move forward from painful pasts in a meaningful way.

In the song, LL actually says “If you don’t judge my gold chains/I’ll forget the iron chains.” I understand that this is merely a song and lyrics shouldn’t be taken so literally, however there is something deeper when a black man says that if he is not judged for his attire he will forget slavery or the legacy of it. LL this is not a very fair trade. The mere idea that one could forget an incredible violation of human rights and its effects is a slap in the face to those that are continuously making efforts to make sure such violations are never repeated.

The legacy of slavery in America is an interesting one and the ramifications of institutionalized repression of a certain group of people are still being felt today by many even though much progress has been made. I believe what makes dealing with this issue unique is that it has been over for 150 years and while Reconstruction made attempts to deal with the integration of blacks into Southern society any gains that might have been made where quickly destroyed by Jim Crow laws, which began yet another set of issues that America would have to later deal with. There has never actually been a large debate or discussion on the issue of race relations in America. Any dialogue had is usually amongst African-American scholars arguing amongst themselves about the status of race, its significance and inequality. There has never been an apology or reparations and many still hold bitterness because of that. It is also hard when another segment of the population who is not directly responsible for slavery feels as though these things should not have to come from them because they weren’t the ones that had anything to do with slavery.

Now, I don’t claim to know what the nation can to move past the pain caused not just by slavery, but also from its effects which are still being felt today, however the suggestions made in the song probably will not do it. For all the criticism and buzz the song generated not much has been said about Paisely and LL’s want to foster a dialogue, assuming that was the purpose of the song. Paisely and LL at least have made attempts at starting a discussion however misguided their points may be.

by Oz C.

Earlier this year, several men accused of committing war crimes during Bangladesh’s war of independence from Pakistan were put on trial before the International Crimes Tribunal in Dhaka. The men were charged with committing heinous crimes in the 1970s including genocide, mass murder, mass rape, and attempting to eliminate entire groups of people. The magnitude of the trials was compared with that of the Israeli prosecution of Adolf Eichmann, Nazi secretary during the Wannsee conference that lead to the Holocaust.

At least one news source reports that the comparison ends there. Eichmann’s trial is said to have been a paragon of meticulous process advocated by the most prominent attorneys and broadcasted for the public. The trials in Bangladesh, however, have been a due process nightmare. The government is accused of interfering with the court’s deliberations and several judges allegedly handed down sentences without hearing all of the defense witnesses’ testimonies. Public discussion of the proceedings has been severely restricted.

In a recent article by The Economist titled Justice in Bangladesh: Another Kind of Crime, the editors of the news-magazine called the trials’ procedural shortcomings an utter failure that jeopardizes the country’s ability to come to terms with its past by bringing to justice those responsible for the crimes that marred the nation’s birth. The editors also wrote “due process is essential to provide true justice to the victims of genocide.” They criticized the public outcry directed at the leniency of life sentences handed down stating that Bangladeshis are cheering on the tribunals’ flawed proceedings because all they care about is that the defendants get their just desserts. They contended that the public reaction would poison the well that someday Bangladesh will have to drink from.

But is there a meaningful distinction between justice and vengeance?

In his most recent book, Payback: The Case for Revenge, Thane Rosenbaum, Law Professor at Fordham Law School, begs that precise question. Professor Rosenbaum answers the question in an article written for The Chronicle of Higher Education with “a call for justice is always a cry for revenge.” And in an interview on NPR’s Talk of the Nation, Rosenbaum said that “all calls for justice require that victims feel avenged and revenge is never just if it’s disproportionate.”

In light of Professor Rosenbaum’s comments, I wondered who are the victims of genocide the editors of The Economist refer to? Are they the actual victims or family members of the deceased? Or is it the public at large—or even the state? And what is meant by “bringing true justice” to the victims? How is that calculated and what form does it take? Does that in fact look very different from revenge? Most importantly, why was the public’s response taken as sign of societal degradation? Is revenge at odds with justice? Professor Rosenbaum’s case for revenge leads me to believe that the editors’ positions are more an indication of historical ignorance than editorial oversight.

Legal scholarship tells us that in a criminal case it is the state, serving as a surrogate victim, that seeks redress for the crime’s harm. As Professor Rosenbaum might say, this legal fiction is morally obtuse because it fails to consider the actual victims’ suffering and emotional loss in the pursuit of justice. The editors hint at understanding this emotional complexity by referring to the country’s ability to come to terms with the past. They immediately fall back into oblivion, however, when they chastise the lack of defense witness testimony but are silent on the prosecution’s failure to include the raped, tortured, and deceased in determining how to right the wrongs.

More perplexing still is how the editors define, or rather fail to define “true justice for the victims of genocide.” How exactly do we evaluate true justice without considering the weight of the victims’ (here, the relatives of the deceased) pain and suffering? Why is due process the only element in this equation worth advocating for? This formalism and overly legalistic approach to crime and punishment has historically been viewed as a sign of an advanced society. But as Professor Rosenbaum said in his NPR interview, “there’s nothing civilized by allowing people who’ve committed wrongs to go unpunished.”

I believe the editors only enlightened commentary came when they highlighted deleterious effect of gagging public discussion on the proceedings. Just as life needs light to exist, so too does justice. And as Dr. Martin Luther King, Jr. wrote from his jail cell in Birmingham, “injustice anywhere is a threat to justice everywhere.”

In the American context, I am reminded of President Obama’s brief statement moments after the heinous acts committed at last week’s Boston Marathon. “Any responsible individuals, any responsible groups, will feel the full weight of justice.” But for how Americans (and Bostonians) will judge the weight of the ensuing justice and particularly vis-à-vis revenge–we’ll just have to wait and see.

by C.P.

Last week the Senate voted down a Bill that addressed background checks for potential gun buyers. In the lead up to the vote, some of the families of the victims of Sandy Hook have spoken in front of Congress in favor of the bill.

Critics have commented that the use of families in the lobbying for the background check bill was “emotional blackmail”.  Rand Paul specifically said that President Obama used the families of victims as a “prop”.  In an obvious attempt to backtrack Paul then said: “Politics isn’t only about facts.  It is about whether you’re seen as empathetic, and I do want people to know that I do care about those families and I understand their grief.”

Thanks, Rand Paul.  Telling us you are empathetic really illustrates how empathetic you are.

This sentiment perhaps is reflective of people’s misguided perception of the law—that it should be completely divorced from all emotion. The law is about the physical and quantifiable and emotions have no business showing up in senate hearing.  Having victim’s family member’s speak out in support of this bill does exactly what these critics think the law should not do: put a face to the issue.

President Obama replied, somewhat ineloquently, to the suggestion that this was emotional blackmail with, “are they serious?”. His incredulous retort is understandable; who is a better advocate for better background checks than the victims’ of gun violence families?  Why wouldn’t the families have a right to voice their opinion on this issue?  The families are not being forced to advocate for the bill.  They are doing so voluntarily because they believe that this new bill could have prevented or at least lessened the chance of this happening.  How could their emotions and their loss be anything but relevant to this debate?

by Z.R.

In December, Rutgers coach Mike Rice was publicly reprimanded for his actions, suspended, fined, and he apologized. The power of public opinion would not allow Rice off that easy. That is fair.  Rice will likely never work in sports again, and possibly show his face in public anytime soon. The court of public opinion deemed him guilty of offenses that his superiors did not. Right or wrong, the public, so obsessed and outraged, understood that taking legal action was not only unwarranted, but unnecessary. Plenty of damage can be done without legal punishment.

I will be the first to say that if put in the same position as Athletic Director Tim Pernetti, I would have pushed to fire the coach. The behavior was truly over the line. However, situations like this show that we accept flaws in our legal system that we have no tolerance for otherwise.

The situation media outlets have deemed a “scandal,” more than anything, shows us the diverse attitudes this country has towards punishment. It shows us the differences between legal justice and moral justice. There is an inherent trust that a legal punishment, no matter the severity, is often the just outcome. That is not to say everyone agrees, but it is to say that the public rarely calls for the firing of all those involved, even in the case of a botched prosecution.

A few misguided articles on New Jersey tort law suggested that Rice be reprimanded through the legal system. If Mike Rice were to have been fired back in December, and cited by law enforcement based on a bullying and/or tort offense, I have no doubt that in a season or two, he would be on the bench again, coaching somewhere. There would no outcry that a judge should be relieved of duty, or that the police did not do enough. Rice would have been better off, and so would AD Tim Pernetti, no matter what he had decided. Once the justice system takes over, we forgive its flawed outcomes.

Yet, Tim Pernetti is out of a job. After examining a situation, he took action he deemed proportional. Sure, it was an error in judgment, but that judgment was on the severity of punishment. In the legal system, we don’t fault those who believe the death penalty is too harsh, or those who believe a plea deal is the best outcome. We may disagree, and the court of public opinion can be extremely unforgiving to those who benefit from the flaws in the justice system. But so rarely would we attack the arbiters of these punishments, because we understand the system is not black and white.

The problem with a moral punishment on its own, as is the case here, is that unlike a legal outcome, it is often based on headlines, misconceptions, unclear facts, and swift justice. Moral outcomes make more sense after the legal system has vetted a situation for a true telling of the story. In that sense the two should work in partnership for a just outcome. In calling for a moral punishment, the media and the public did a disservice to the idea of truth seeking. The well accepted principle that no punishment is black and white was cast aside, showing that moral punishment, while well intentioned, lacks a much needed structure the legal justice system can provide.

by Kendal S.

Senators Joe Manchin (D-WVA) and Pat Tommey (R-Penn) have come to a
compromise that sets up the likelihood of a major Senate debate on gun
legislation. First Lady Michelle Obama also made “emotional remarks” to highlight
the importance of gun control.

Along with recent tragedies of Aurora and Newtown, it is assured that
the issue of gun control is not going away anytime soon.  Now, do I
believe we need stricter gun control?  I can honestly say that I’m
torn on the issue.  Do I own a gun?  No.  Do I plan on ever owning a
gun?  No.  Do I believe people should be allowed to own guns?  A
conditional yes.  Do I believe the right to own a gun is
constitutionally protected?  Maybe… but not by the 2nd Amendment.

The most ridiculous case I’ve read in law school is District of
Columbia v. Heller.  And it has nothing to do with the outcome of the
case.  In no way do I hold myself out as a constitutional scholar and
Justice Scalia is far, far, FAR more knowledgeable about
constitutional law than I’ll ever be.  That being said, I remember
having to reread the majority opinion several times.  My first reading
left me confused.  My second left me in disbelief.  The third time, I
couldn’t get through the opinion without laughing multiple times.

In my humble opinion, this case is just an example of the political
trumping the legal.  Obviously, gun control is a politically decisive
issue and I believe the 2nd amendment was stretched and twisted to
support a certain political view.  And honestly, I believe the 2nd
Amendment is a relic that is no longer applicable in our day an age.

Now, before I get shot by a member of the NRA, let me say that I
believe gun ownership could be a right protected by the Constitution.
I believe a very convincing argument could be made that gun ownership
is a fundamental right protected by substantive due process.  But why
bother with messy substantive due process when you can make a more
forceful (but in my opinion, a disingenuous) Second Amendment argument.