Nation Topics - Law
Crime Supreme Court Death Penalty Drug War and Drug Policy Guns and Gun Control Immigrant Detention Centers Immigration to the US Increased Security After 9-11 International Law Jails and Prisons Lawsuits Police and Law Enforcement Police Brutality Profiling Separation of Church and State The Constitution The Courts
News and Features
A federal district court recently blocked publication of Alice Randall's The Wind Done Gone, a parody of Margaret Mitchell's Gone With the Wind, ruling that the parody constituted plagiarism.
Section One--Reading Comprehension
Read the following literary excerpts. Pick the one that is not parody. Write an essay about why its publication should be enjoined.
a. "Ah's sceered of cows, Miss Scarlett. Ah ain' nebber had nuthin' ter do wid cows. Ah ain' no yard nigger. Ah's a house nigger."
"You're a fool nigger, and the worst day's work Pa ever did was to buy you," said Scarlett slowly, too tired for anger. "And if I ever get the use of my arm again I'll wear this whip out on you."
There, she thought, I've said nigger, and Mother wouldn't like that.
--Gone With the Wind
b. "Help me out of these wet things, Pansy," Scarlett ordered her maid. "Hurry." Her face was ghostly pale, it made her green eyes look darker, brighter, more frightening. The young black girl was clumsy with nervousness. "Hurry, I said. If you make me miss my train, I'll take a strap to you."
She couldn't do it. Pansy knew she couldn't do it. The slavery days were over, Miss Scarlett didn't own her, she could quit any time she wanted to.
--Scarlett: The Sequel, by Alexandra Ripley
c. [H]e took them over to where the house we called Twelve Slaves Strong as Trees once stood. I have forgotten their name for it. What I remember is this: there were twelve columns across the front of that slave-built house. They stood for the original twelve dark men who cleared the land. And the lines, the flutes, on those columns stood for the stripes on those slaves' backs.
--The Wind Done Gone
Section Two--American History
Read the following passages and decide which best summarizes the facts of the Civil War.
a. "De Yankees is comin'!" bawled Prissy, shrinking close to her. "Oh, Miss Scarlett, dey'll kill us all! Dey'll run dey baynits in our stummicks! Dey'll--"
--Gone With the Wind
b. It was the Confederate Memorial, symbol of the proud, heedless courage that had plunged the South with bright banners flying into destruction. It stood for so many lives lost, the friends of her childhood, the gallants who had begged for waltzes and kisses in the days when she had no problems greater than which wide-skirted ballgown to wear.
--Scarlett: The Sequel
c. If it was mine to be able to paint pictures, if I possessed the gift of painting, I would paint a cotton gown balled up and thrown into a corner waiting to be washed, and I would call it "Georgia."
--The Wind Done Gone
Section Three--Critical Reasoning
Which of the following descriptions best completes the following analogy: mother is to child as elephant is to _______.
a. Mammy emerged from the hall, a huge old woman with the small, shrewd eyes of an elephant. She was shining black, pure African, devoted to her last drop of blood to the O'Haras.
--Gone With the Wind
b. Scarlett stared down at the skull-like face of the dying old woman. "I love you, Mammy," she whispered. "What's going to become of me when I don't have you to love me?"
--Scarlett: The Sequel
c. They called her Mammy. Always.... I heard tell down the years they compared her to an elephant. They shouted down to their ancestors: She was big as an elephant with tiny dark round eyes. But she wasn't big enough to own a name.
--The Wind Done Gone
Section Four--True or False
Mark the following true or false. Use a hard black pencil to fill in the entire area of the little white circle of your choice.
a. To focus the social passions of African-Americans on what some Americans may have done to their ancestors...years ago is to burden them with a crippling sense of victimhood.
--Journalist David Horowitz, in an advertisement in Brown University's student newspaper
b. We've all got to stand up and speak in this respect or else we'll be taught that these people were giving their lives, subscribing their sacred fortunes and their honor to some perverted agenda.
--Attorney General John Ashcroft, quoted in Southern Partisan
c. I could see in Other's face the first moment it came to her the possibility that Mammy did for her not because she wanted to, but because she had to. Maybe Mammy loved her and maybe Mammy didn't. Slavery made it impossible for Other to know. "She who ain't free not to love, ain't free to love."
--The Wind Done Gone
Section Five--Logical Thinking
Cross out the one that is not free speech.
a. a hit list of abortion doctors published on the Internet
--Ninth Circuit opinion, March 2001
b. a regulation promulgated by New York City public schools chancellor Harold Levy prohibiting the opinionated teaching of race and politics
---Peter Noel, The Village Voice, November 22-28, 2000
c. It's a pissed bed on a cold night to read words on paper saying your name and a price, to read the letters that say you are owned, or to read words that say this one or that one will pay so much money for you to be recaptured. It be better never to read than to read that page with your name on it.
---The Wind Done Gone
Picture a grown-up discussion in Iceland, Portugal, Italy or Poland. The question is--what to do with a confessed mass murderer? The argument veers between different kinds of therapy and incarceration, and then somebody says: Let's kill him by playing doctors, and invite some people over to watch it on TV! All eyes roll toward the ceiling.
A few years ago, I took the tour that the federal government offers visitors to its facility in Terre Haute, Indiana (see "Minority Report," May 8, 1995). This rather depressed little burg, once celebrated as the birthplace of the mighty and humane Eugene Victor Debs, had become the lucky recipient of a state subsidy for a new death row. Local boosters talked vaguely of how this might bring much-needed jobs to the area. Now I notice that there has been a recent and well-publicized shot in the arm for the town's T-shirt and souvenir concessionaires. At the time, I remember wondering what I was being reminded of. It came back to me this week. In The Adventures of Augie March, old man Einhorn warns Bellow's young protagonist that the state buys beans in bulk, and well in advance, knowing that there are some people who can be counted upon to get themselves behind bars and come and eat them.
In something like the same way, if the federal government decides to join the death-penalty racket, it will sooner or later find someone to execute. And it can also count on a number of liberals, all troubled and conscientious, to bite their lips and say that perhaps just this once wouldn't matter. "Poster boy for capital punishment" is the lazy phrase that has been employed by several columnists and commentators to describe Timothy McVeigh, as they agonize about whether the state should have the power of life and death, not to mention the right to reinforce this power by means of compassionately conservative closed-circuit TV.
If McVeigh is the poster boy for anything, he is the poster boy for the feral American right. He is opposed to "big government," yet--in his most callous and disgusting phrase--he regards dead children as "collateral damage." (Where on earth did he pick up that obscene phrase, I wonder?) He is also the poster boy for a cult of death and revenge, which takes its tune from the state murder of civilians at Waco, Texas. His last request, or the closing point in his demented program, is a demand that society put him to death without further reflection. Now we can see the same Justice Department bureaucracy that brought us Waco, as it scurries to attend to every detail of the mass murderer's wish.
The McVeigh case makes absolutely no difference at all to the arguments against the death penalty. It is not news that we have depraved people among us; nor is it news that they like to taunt society with their combination of relish and indifference. The number of victims, the heinousness of the offense--these considerations do not and should not weigh in the balance. Ted Bundy could have been snuffed for any one of his crimes, or for none of them. Many people sentenced to death have doubtless been executed for crimes they might have committed but for which they were not convicted. Many living prisoners have committed appalling and evil crimes for which any sentient person would want them to die. And many murderers have been reprieved because they were condemned for the wrong murder, quite probably just as many as have been executed for the only murder they did not in fact commit. People sternly say that at least there is no doubt about McVeigh. Does that then nullify all their previous doubts on the death penalty?
The case can be put quite simply and intelligibly. It is not possible to be in favor of the death penalty à la carte. The state either claims the right to impose this doom or it does not. Nobody will ever be in possession of enough information to determine which convict is deserving of death and which one is not. (This is what people mean when they say rather falteringly that nobody can be "god" in such matters.) Subjective considerations about atrocity and wickedness are what the judicial system exists to prevent, or at the very least to contain. The argument about "closure" and satisfaction for relatives and friends is a sinister and bogus appeal to the irrational; the same argument would support a closed-circuit torture session for the condemned man, and it would not startle me in the least if McVeigh demanded this, too, as his right and his preferred means of checking out. Would we then defer to his expressed wishes and enact a scene of cathartic cruelty?
All but the most extreme pacifists will admit of a case where it might be immoral or amoral not to use force, if not to defend oneself then to defend others. All but the most fanatical opponents of abortion will allow for certain customary "exceptions," too well known to be rehearsed by me. The most committed vegetarian may still employ a leather belt if the consequence of not doing so is that his pants fall around his knees. But capital punishment is an either/or proposition, as every law-bound society except the United States has come to realize. The state, even in time of war, may not lawfully kill its prisoners. (And the populace has no business demanding that it should.) There are even some good utilitarian arguments for this. We don't know enough about serial killers and mass murderers, and, humanely treated, these very perpetrators might live to yield useful information. The possibility of rehabilitation cannot be excluded; it occurred even with some of the Nuremberg defendants and can also be accompanied by some worthwhile disclosures.
The utilitarian argument ought not to be the deciding one, though it's interesting to notice that even the basest version of it will vanquish the emotional nonsense put forward by Attorney General Ashcroft and his closed-circuit constituency. Ashcroft found the idea of further interviews and statements from the Terre Haute death cell too repulsive to contemplate. But as I write, and in full view of a mass audience, McVeigh is orchestrating the last chords of a fascistic anthem and hypnotically persuading the whole dignified force of law and order to join in.
Attorney General John Ashcroft says he does not want Timothy McVeigh to "inject more poison into our culture"--a striking statement, given the method of McVeigh's execution. Accordingly, he intends to deny permission for television interviews during the Oklahoma City bomber's final weeks on federal death row. (The Oklahoma legislature had a similar purpose in mind when it passed a resolution condemning a new book about McVeigh--thus bringing it more publicity, as a dissenting legislator pointed out.) At the same time, Ashcroft has made a dramatic cultural intervention of his own, authorizing the closed-circuit telecast of McVeigh's execution to perhaps 200 family members of his victims.
Both of Ashcroft's announcements show clearly how capital punishment is coarsening American institutions. Although most of the press coverage did not mention it, the Attorney General's diktat banning broadcast interviews applies not only to McVeigh but to all federal death-row inmates. However repellent the thought of a McVeigh TV interview, the ban is one more step in a repressive, systematic national clampdown on press coverage of prisons, which in some states, like Virginia, has led to a virtual blackout of inmate interviews. In the future, Ashcroft's interview ban could deny broadcast access to a federal inmate far different from McVeigh, someone with a legitimate claim of innocence or discrimination--a real likelihood given the nearly 100 death-row inmates in state prisons exonerated by new evidence and the large percentage of capital convictions overturned for grave constitutional error in the original trial.
The question of a public telecast of McVeigh's lethal injection is now moot with Ashcroft's closed-circuit plan, though the drumbeat for public executions continues--with some support among notable death-penalty abolitionists and civil libertarians like Sister Helen Prejean and Nat Hentoff. Televising executions, their argument goes, would either sicken the public or at least make Americans more accountable for what goes on in their name. We disagree. We see telecasts of executions as a fundamentally different matter from death-row interviews. Today's executions by lethal injection are exercises in the engineering of death, the institutionalizing of death, the bureaucratizing of death. Far from shocking America, viewing lethal injections through the distancing glow of a TV screen will further normalize state killing--as television ultimately normalizes the forms of violence it depicts.
Ashcroft did not invent closed-circuit telecasts of an execution--it has been tried at the state level--but it raises disturbing questions. For one thing, as several technological experts have pointed out, the phone-line transmission may not be immune to hacking or decryption--raising the prospect of a McVeigh snuff film in the near or distant future. More important, it makes this first federal execution, one moving forward even as Supreme Court Justice Ruth Bader Ginsburg joins the call for a death-penalty moratorium, a spectacle of individual vengeance for McVeigh's victims--a dangerous turn toward privatizing justice.
Far from shifting the spotlight to the survivors of Oklahoma City, Ashcroft's decision heightens the perverse amplification of McVeigh's voice initiated by his death sentence. The press spent the early weeks of spring speculating about how large a crowd would watch McVeigh take the needle. Instead of fading into anonymity, McVeigh has kept himself on the front page until his final moments and turned the chronicle of his last months into a testament for the militia fringe, who will make him a martyr. This is justice neither for McVeigh's victims nor for the country--and that is the real poison seeping into our culture from the federal death chamber in Terre Haute.
The arrest in France of James Kopp, the accused assassin of Buffalo obstetrician Barnett Slepian, could not have come at a more awkward time for the Bush Administration. Bush inaugurates himself by blocking aid to international family planning agencies and by nominating antiabortion fanatics to run the Justice Department. Then fugitive Kopp surfaces to remind the American public of where
these bottom-line commitments lead.
In 1994 Bill Clinton's Justice Department initiated a grand jury inquiry into
abortion-clinic violence. But FBI agents grumbled that Justice was
wasting their time, and the grand jury folded its tent in January of
1996 after finding no evidence of a national conspiracy. Five years
later, it's clear that Kopp--accused in three nonfatal shootings in
Canada and the United States in addition to the murder of Dr.
Slepian--had a lot of help, the kind of help for which "conspiracy"
is the operative legal term.
So far, investigators have
arrested two antiabortion felons in Brooklyn--Dennis Malvasi,
convicted of a 1987 clinic bombing in Manhattan, and Loretta Marra,
who blockaded clinics with Kopp. They sent Kopp money and stayed in
touch with him through a Yahoo drop box. The circle is almost
certainly wider--and transnational. For the past year Kopp lived in
Ireland, bunking in hostels and mingling with the fundamentalist
breakaway Catholic sect founded by excommunicated Archbishop Marcel
Lefebvre. Kopp managed to acquire at least two separate Irish
identities and passports for himself and a blank Irish passport and
birth certificates for his New York friends, and someone in Ireland
vouched for his references for an employment agency--all of which
makes it obvious that his was not a solo act. Ireland's right-to-life
leaders deny any connection to the assassin, and it's entirely
possible that his support network was American. In the last
half-decade US antiabortion campaigners have moved on Ireland in a
big way, introducing a militancy previously unknown
Speculation necessarily swirls around the followers
of the Rev. Patrick Mahoney of the Washington-based Christian Defense
Coalition. In March 1999 Mahoney led a brigade of forty Americans to
Dublin, where they occupied the offices of the Irish Family Planning
Association and taught their Irish counterparts all-American
blockade-and-intimidation techniques. Indeed, only a day before
Kopp's arrest, Mahoney was slapped with an Irish court injunction
prohibiting him from further harassing the IFPA. Mahoney had tolerant
words in 1997 after Slepian's shooting, and responded to Kopp's
arrest by warning the Bush Administration not to "harass and
intimidate the pro-life movement."
It can't escape notice
that the Kopp conspiracy began to unravel just as the Court of
Appeals for the Ninth Circuit overturned a jury verdict and
injunction on the Nuremberg Files website, which displays
photos of abortion providers and a list with a strike through the
names of assassinated physicians. On March 28 the Ninth Circuit
unanimously found, in the words of presiding Judge Alex Kozinski,
that if the website's rhetoric "merely encouraged unrelated
terrorists," it is protected by the First Amendment.
Michelman of NARAL called the ruling "a major setback for a woman's
right to choice," and along with Planned Parenthood vowed to pursue
the case to the Supreme Court. To me, Kopp's overdue arrest suggests
a different conclusion. There can be no doubt that the Nuremberg
Files website contributed to a climate of fear--that the website
is the theory and James Kopp's rifle is the practice. Yet the
emerging facts of Kopp's flight make it clear that keeping The
Nuremberg Files off the Internet would not have saved Dr. Slepian
or brought the shooter to justice. The important thing is to
investigate real antichoice gangsterism, real shootings, real escape
routes. The important thing is to insist on the continuity between
Kopp and the "respectable" antiabortion agenda of the White House.
Bush and Ashcroft have been assiduously working to accomplish by
executive order what Kopp attempted with a gun: diminishing the
availability of abortion and thus undermining a civil right. This,
and the climate of fear generated by clinic violence, must be fought
with politics, not censorship. And the recent rise of police
surveillance aimed at antiglobalization protesters only makes more
clear the danger of prosecuting an inflammatory publication as if it
were the hand that smashed the windowpane or pulled the
Kopp's arrest is full of ironies. The most
antichoice Attorney General in US history is now stuck prosecuting an
antichoice assassin; an Administration wild about the death penalty
must forgo capital punishment to secure Kopp's extradition because
France opposes it. It would be a final, and tragic, irony if
prochoice advocates permit antiabortion thugs like Mahoney to play
the martyr--drawing attention away from the very violence they have
While most of the 1,500 people who traveled to Albany from all over New York
State last Tuesday endured freezing winds outside the legislature to tell
stories of families torn apart and chant s
On March 27, a federal district court struck down the University of Michigan Law School's affirmative action admissions plan, ruling that the school's interest in a diverse student body did not justify using racial preferences. This past December another court in the same district reached the exact opposite result, finding the university's parallel affirmative action program for undergraduates was justified by diversity.
These diametrically opposed rulings on a single university's affirmative action programs perfectly mirror the current division in the nation's courts. Affirmative action, a near-universal practice in universities across the nation, is under serious legal attack. Disappointed white applicants have sued universities in Georgia, Washington and Texas as well as Michigan.
As in Michigan, the lower courts in these cases have divided sharply, so it is only a matter of time before the none-too-hospitable Supreme Court takes up the issue. The main point of disagreement concerns whether diversity is a sufficiently "compelling interest" to justify race-conscious admissions. There is a strong case for diversity-based affirmative action. But another justification, not generally pressed by the universities, offers a more cogent and morally persuasive rationale for affirmative action: society's interest in integration itself.
Since 1978 affirmative action in higher education has rested on the slimmest of reeds--a lone opinion from a Justice who could not attract a single other Justice to his views. In Board of Regents of the University of California v. Bakke, a divided Supreme Court struck down a medical school admissions program that set aside a predetermined number of seats for minority applicants. Four Justices deemed any consideration of race illegal under a federal statute that prohibits discrimination by entities receiving federal funds, while another four concluded that the program was a valid response to broad societal discrimination.
The decisive opinion in the Bakke case was that of Justice Lewis Powell. He voted to invalidate the University of California's program, but he also stated that racial preferences are sometimes permissible, citing with approval Harvard's affirmative action program, in which, in the name of diversity, race was considered as one "plus factor" among many, and all applicants competed for all openings. Harvard's program was not even at issue in the case, but Justice Powell's views about it have guided universities ever since.
Subsequent Supreme Court opinions have appeared to diverge from Justice Powell's analysis. For example, Justice Sandra Day O'Connor, a critical swing vote, explicitly rejected diversity as a justification for an FCC affirmative action program, stating: "Modern equal protection has recognized only one [compelling state] interest: remedying the effects of racial discrimination." The FCC's interest in broadcast diversity, she reasoned, was "simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications." Her opinion was in dissent, but would probably garner five votes today. In other opinions, however, Justice O'Connor has cited Justice Powell's Bakke opinion with apparent approval.
One thing is certain: The argument for diversity finds virtually universal acceptance in academe. More than 360 higher education institutions signed on to briefs defending the University of Michigan's affirmative action program. And for good reason: In our increasingly diverse society, the ability to communicate and understand across racial lines is an essential part of citizenship, and teaching that skill requires a diverse setting. Not considering race in the diversity mix would effectively penalize minorities by denying them benefits that Iowans, violinists, potential donors' children and synchronized swimmers receive.
The usual response is that the Fourteenth Amendment treats racial classifications differently. But the equal protection clause does not prohibit all consideration of race. In its recent voting rights cases, for example, the Court held that race may be considered as one factor among many in redistricting, as long as it is not the "predominant motive." The redistricting process necessarily considers all sorts of factors as proxies for likely political allegiances, and adding race to the mix does not raise the same concerns as other kinds of race-conscious decision-making. Similarly, the search for diversity necessarily considers many factors as proxies for intellectual and cultural diversity, and race should be permissible as one among many.
Ultimately, however, integration itself may be a stronger justification for affirmative action than diversity. An integrated student body undoubtedly adds to diversity. But so does admitting violinists, and surely there is a stronger argument for admitting African-Americans than violinists. Higher education is one of the few arenas in modern life where racial integration remains a realistic possibility. Despite the demise of Jim Crow, most of us continue to live, work, socialize and worship in effectively segregated settings. College student bodies, by contrast, can be integrated because they are consciously selected and are not predetermined by geography or class. Integration in higher education in turn teaches us that integrated communities are possible, and that living in such communities can break down the deep barriers that continue to divide the races. At the same time, because a college degree is essential to professional success, integration in higher education is necessary to any measure of integration beyond.
The Court and the country have failed to live up to the promise of Brown v. Board of Education. The last thing we should do is turn the Constitution into a barrier to one of the last remaining arenas of true integration in America.
All signs point to an all-out drive by the Bush Administration to slot judicial conservatives into the eighty-nine current vacancies on the federal bench. The recent to-do about ending the American Bar Association's role in screening nominees was a smoke signal to the conservative base that only the "right" kind of judges henceforth need apply. White House counsel Alberto Gonzales grumbled that the ABA, which has been screening nominees since the Eisenhower Administration, "takes public positions on divisive political, legal and social issues." In fact, ABA's screening committees eschew political judgments, instead evaluating the candidates' ethics, competence and judicial temperament.
The real meaning of Gonzales's words is that the Bushites want a free hand to appoint their own ideologues. Conservatives crave revenge for the 1987 Senate rejection of Supreme Court nominee Robert Bork, whom four members of the ABA's fifteen-member standing committee found "not qualified." This split decision by the usually unanimous committee gave ammunition to Bork's opponents. Gonzales let the word go forth that in selecting nominees he and John Ashcroft will heed the Federalist Society and kindred far-right legal groups whose acolytes honeycomb this Administration.
Bush further heartened his right-wing supporters by blocking Clinton nominees for the bench like Roger Gregory, who had been given an interim appointment to the Fourth Circuit. (He's the first African-American to enter Jesse Helms's segregated preserve.) Meanwhile, other solidly qualified Clinton nominees have been left dangling by the Judiciary Committee, including James Klein, the able DC public defender; Helene White (whose nomination was stalled for more than 1,500 days) and a score of others for whom Senator Orrin Hatch refused to hold hearings.
The Bushites' court-packing drive is a grade-A rush job. For one thing, the roll Bush is on is petering out with his tax plan seen by a wider public as too friendly to the rich. Then, too, if an enfeebled Strom Thurmond exits the stage, control of the Judiciary Committee would shift to the Democrats, and then it's a whole new ball game.
If ever there was a time for mobilizing a counteroffensive, this is it. Bush has no mandate to add more weight to an already rightward-tilting federal bench. The Supreme Court's patently political ruling in Bush v. Gore has shaken its credibility. There is a growing constituency for judicial integrity and against a rollback of individual rights. Public-interest groups are tuning up. Some that will be in the thick of the fight: National Women's Law Center, National Abortion and Reproductive Rights Action League, Leadership Conference on Civil Rights, People for the American Way, NAACP Legal Defense and Educational Fund (for more information contact Marcia Kuntz at the Alliance for Justice, 202-822-6070; firstname.lastname@example.org).
Progressives must also apply pressure on Democratic senators to stall the Bush drive to stack the bench. Yale law professor Bruce Ackerman's suggestion that no Bush Supreme Court nominees should be approved is on the mark. Democrats should demand the same privilege that Hatch claimed of vetting all lower court nominees before their names become public.
Let's heed the admonition of Nan Aron of the Alliance for Justice: "Fight early, fight often and fight to win."
Adrian Wilson can't make a lobbying trip to
Albany anytime soon: The New York State Department of Corrections
does not escort its prisoners to the state capital for teach-ins. But
his story--typical of the 22,000 nonviolent drug offenders in New
York's cellblocks on any given day--could serve as the centerpiece of
the campaign now under way for the long-overdue repeal of the
notoriously punitive Rockefeller drug laws. In 1983 Wilson, an
African-American, then 29, was arrested for drug possession--his
first offense--and prosecutors offered him a plea bargain that would
have required him to undergo electroshock treatments and eight
months' incarceration. Wilson chose instead to exercise his
constitutional right to a trial. Convicted of possessing four ounces
of cocaine, instead of eight months he faced a mandatory prison term
of fifteen years to life.
No single moment in the history
of US criminal justice matches the destructive impact of the New York
legislature's 1973 session. That was when Governor Nelson Rockefeller
set the tone for a national wave of prison-packing schemes with the
drug laws that bear his name. As Wilson's case illustrates, the
Rockefeller drug laws combined two regressive criminal justice
policies into a new and potent brew: They prescribe imprisonment
rather than treatment for drug offenders, and they establish
mandatory minimum sentences and give the power to decide sentences to
the prosecutors, who choose charges, rather than to the judges
The outcome, repeated thousands of times
daily around the country: Nonviolent drug offenders like Wilson get
punished not in proportion to any presumed threat to society but for
daring to inconvenience prosecutors with a trial. With built-in
incentives for police and prosecutors to concentrate on low-level
users and with racial discrimination an inevitability, the
Rockefeller drug laws are the ancestor of just about every regressive
criminal justice policy since enacted--three-strikes laws, federal
sentencing guidelines and zero-tolerance police sweeps.
With the cost for imprisoning Rockefeller drug offenders
topping $710 million per year, Governor George Pataki has at last
proposed a package of reforms reducing minimum drug sentences and
expanding treatment. Assembly Democrats--many of whom have dodged the
issue for years until Pataki opened the door--have upped the ante,
proposing more sweeping discretion for judges and more money for drug
treatment. The Correctional Association of New York and a broad array
of activist, religious and legal-reform groups have launched a Drop
the Rock campaign (kicked off with a March 1 forum in Manhattan
co-sponsored by the Nation Institute), which on March 27 will bring
thousands to Albany for a day of teach-ins and citizen lobbying. Only
a handful of district attorneys, worried about losing their
sentencing leverage in plea bargains, are holding out for the
Rockefeller status quo.
So the question is not whether New York will reform but if reform will go far enough. Pataki's plan would not give judges any more discretion for Class B felonies, the most commonly charged drug offenses in New York, and would actually
increase some minimum sentences. Pataki would allow prosecutors to handpick the offenders tracked into treatment--a certain recipe for abuse and another usurpation of the proper authority of judges. Perhaps most important, Pataki has so far come nowhere near proposing a budget for drug treatment commensurate with the need. Drug-law reform without a commitment to drug treatment is a half-measure, similar to the 1980s deinstitutionalization of psychiatric patients
with no system of community mental healthcare in place.
New York, which for years styled itself as a pioneer in criminal justice
policy, is now playing catch-up to states like California, whose
voters last November overwhelmingly approved a treatment-over-prison
referendum for first- and second-time offenders, or Colorado and
Nevada, which have passed medical-marijuana measures. But the
Rockefeller laws are the founding charter of the failed war on drugs,
and their repeal would turn state reform tremors into an American
earthquake. In immediate impact on the lives of the poor and people
of color, and as a long-term shift in national priorities, there will
be no more important campaign this year. It's time to Drop the
Many compared it to marching through a dream.
After seven years under siege by 70,000 Mexican Army troops in the
jungles and highlands of Chiapas, the Zapatista National Liberation
Army (EZLN) sent twenty-four delegates, including its pipe-smoking
writer-spokesman Subcomandante Marcos, on a triumphant two-week
motorcade that landed in Mexico City on March 11.
believe that in any place, in any space in this world--and I have the
memory of my own revolution twenty-six years ago--I don't remember a
more moving moment than I lived yesterday," declared the
septuagenarian Portuguese Nobel Prize-winning author José
Saramago the next morning.
The US press coverage of the
march, limited though it was, hinted at such an apotheosis: the
cheering multitudes that greeted the Zapatistas from the roadsides
and at mass rallies in twelve states along the route, the flowery
words of peace and civil rights coming to Mexico's mythical newfound
democracy. But for the Zapatistas and Mexico's indigenous movement,
the struggle now turns into a battle to codify the movement's
progress into law.
The caravan came to demand
constitutional recognition for Mexico's 10 million indigenous
citizens, subjected to generations of repression, poverty, racism and
exploitation of their lands and labor. As Mexico's President Vicente
Fox passed his hundredth day in office, he reiterated calls to the
Zapatistas to negotiate a peace. Not until the government fulfills
the promises it has already made, answered the rebels: release of
Zapatista political prisoners, closure of seven of the 259 military
bases in Chiapas, and congressional passage of the law that would
ratify the 1996 San Andrés peace agreements signed by the
government [see Jerry W. Sanders, "Two Mexicos and Fox's Quandary,"
The geographical advance was accompanied by a
steady rise in the popularity of Marcos and the Zapatistas in opinion
polls, an average gain of two percentage points per day, with over 50
percent in support. The implementation of the San Andrés
Accords is now the sticking point. Marcos and the Zapatistas, with
more than 1,000 delegates from the Indigenous National Congress,
encamped at the base of Mexico City's Cuicuilco pyramid--a circular,
370-foot-diameter stone monument that has survived at least 2,600
years of lava flows, earthquakes and urban
Underscoring their credo, "We will not sign a false
peace," the Zapatistas caused a fierce uproar when, as the caravan
was launched from San Cristóbal, Chiapas, they named architect
Fernando Yáñez Muñoz as their representative to
the federal Congress. Mexican police agencies have long claimed that
Yáñez is Comandante Germán, the feared national
guerrilla leader of the 1970s and '80s who, they say, helped found
the Zapatista army in the jungle in 1983, a charge that
Yáñez has denied. The Zapatistas have also, for the
first time, called upon other guerrilla movements to protect their
journey and remain alert, implying that if the state doesn't keep its
word, an armed guerrilla response could explode
María Luisa Tomasini, 78, a Chiapas
native designated by Marcos as the "grandmother of all the
Zapatistas," analyzed his call to the other insurgent groupsas she
was returning from the March 7 Zapatista rally in Iguala, Guerrero, a
state with at least sixteen armed clandestine guerrilla
organizations. "Clearly," she said, "it was a threat to the
government that it had better comply."
The powerful sectors
that have always gotten their way in Mexico--bankers, chambers of
commerce chiefs, right-wing clergy, the TV networks and key
legislators--are working furiously to sabotage the road to a genuine
peace. Fox's party, the PAN, teamed up with the former ruling party,
the PRI, against the left-wing PRD party to propose that the
Zapatistas meet with twenty congressional leaders instead of the
entire Congress. Marcos, noting that the indigenous of Mexico have
always been hidden "in the kitchen, on the back porch," rejected the
offer, arguing that the Zapatistas and the Indigenous National
Congress deserve to address the whole Congress. Hard-liners continue
to seek any roadblock to passage of the full indigenous rights bill
with hysterical claims that autonomy would fracture the nation, and
they vow radical surgery to the initiative.
On March 19 the
Zapatistas announced they will return to the jungle, citing the
"close minded" attitude of "cavemen politicians," saying, "Nothing
will be able to stop the popular mobilization" that stems from the
Congress's failure to act. "We will return with everyone who we are."
Immediately, thirteen national peasant-farmer groups pledged
nationwide marches, students plotted direct action and five major
indigenous groups in Oaxaca vowed to close the Pan American Highway
until Congress passes the accords. Congressional leaders begged the
Zapatistas to stay, Fox urged the Congress to meet with the rebels
and the drama now moves in unpredictable directions.
guiding principle of the San Andrés Accords is autonomy. The
word has galvanized many beyond Mexico's indigenous populations. The
battered Mexican left--peasant farmers, urban workers and especially
the nation's youth--view themselves, too, under the banner of
autonomy. Indeed, the popularity of the Zapatista struggle around the
world derives at least in part from the coherent language of
opposition to globalized and savage capitalism that they have
constructed. French sociologist Alain Torraine, who accompanied the
caravan, praised the Zapatistas during a March 12 discussion with
Marcos and the comandantes in Mexico City, marveling, "The entire
world, and we are speaking of the left, is looking for a new
language." Comandante David, a Tzotzil delegate who was a chief
negotiator and architect of the San Andrés Accords,
acknowledges that the demand for autonomy goes far beyond indigenous
rights. "We are going to explain directly to the indigenous and
nonindigenous brothers of the country that indigenous rights are for
the good of all the peoples," he said while preparing to leave on the
Autonomy--what might be called "home rule" in
other parts of the world--includes local control of land use, a sore
point for big business in Mexico, its eyes on natural
Beyond Mexico, US investors and corporate
interests, with expectations that Fox will be the most effective
deliveryman yet of Mexican resources under NAFTA, are stoking the
subterfuge. Former US Ambassador to Mexico James Jones, now a
railroad baron and rainmaker for the Manat, Phelps and Phillips law
and lobbying firm in Washington, is on the board of directors of TV
Azteca, the most notorious manipulator of public opinion among all
the Mexican media. TV Azteca joined the other broadcasting giant,
Televisa, to present a March 3 Concert for Peace live from Aztec
Stadium, featuring a laser light show, a Woodstock-style logo and the
usual condescension toward "our indigenous brothers." The prepackaged
video aired with the concert didn't mention autonomy, or indigenous
political prisoners, or 500 years of conquest--certainly not justice
in connection with the 1997 massacre of unarmed indigenous peasants
at Acteal. The only proposed solution was to send aid to the poor,
barefoot indigenous communities, an approach known in Mexican
politics as "clientism." Many analysts saw Fox's fingerprints on the
TV peace show, as both stations rely on state permission to broadcast
in Mexico. Indeed, one of the demands of the San Andrés
Accords is the right of indigenous peoples to break that control by
forming their own media, including the use of radio and television
The question of indigenous autonomy also has
consequences for the US-imposed "war on drugs." The San Andrés
Accords would restore indigenous rights to the use of currently
illicit sacred plants and codify the pre-eminence of ancient forms of
community justice. Luciano, a spokesman for the Zapatista community
of Polho, explained to me in 1998 how the autonomous system works
without constructing a single prison cell: "If a young man grows
marijuana, he goes before a municipal judge to be disciplined and
oriented so that he won't ever do it again. If the youth does it
again, there is no response whatsoever: He cannot be pardoned a
second time. He would then be expelled from the
That the Zapatista communities have had far
more success in driving out the narcotraffickers and preventing drug
and alcohol abuse than any other region of the Americas is of little
concern to the big talkers of law and order. Opponents charge that
autonomy in matters of criminal justice would "balkanize" the country
and subvert the "rule of law."
Indigenous and social
movements across Latin America--in Ecuador, Colombia, Bolivia, Peru,
Panama, Brazil and other nations--had representatives quietly
observing the caravan. In spite of the powers stacked against them,
the Zapatistas, newly strengthened, their national support deepened,
have many cards yet to play in forcing legislative victory. In the
latest of the ironies under NAFTA, autonomy may thus, and soon,
become Mexico's leading export product.
Unchastened by the widespread denunciation of their election decisions, the Supreme Court's conservative bloc seems determined to continue using its one-vote majority to ram through an assault on Congressional power. Two recent cases illustrate how indifferent the conservatives have become to traditional notions of the separation of powers, fidelity to constitutional and statutory text and their own rhetoric about judicial restraint. This time the victims were the disabled and the environment.
In 1995 Patricia Garrett, a director of nursing at the University of Alabama Hospital, was demoted after taking time off for lengthy breast cancer treatment. She sued the state for damages under the Americans with Disabilities Act (ADA) and won in the lower courts. In February, however, the Court's five conservatives ruled that the Eleventh Amendment barred her suit and dismissed it (University of Alabama v. Garrett).
In six decisions since 1993, the five conservatives have ruled--usually over angry dissents by the other Justices--that suits against a state are barred by the Eleventh Amendment. Section 5 of the Fourteenth Amendment, which authorizes Congress to enforce rights guaranteed by that amendment by "appropriate legislation," has, however, been held to override the Eleventh Amendment. Garrett tried to use that precedent. The 5-4 majority refused. As they read the legislative record supporting the ADA, Congress had not shown a need for the law.
The Eleventh Amendment merely denies federal courts the authority to hear suits against a state by residents of another state. The conservative majority has, however, interpreted it to incorporate the ancient and now-discredited sovereign immunity doctrine, the notion that "the king can do no wrong." As a result, state governments do not have to compensate their victims for state misconduct, no matter how egregious. And the conservative majority has applied this even to suits by a state's own residents, as in the Garrett case, and to suits in state courts for state violations of federally created rights, despite the express language of the amendment limiting it to suits by out-of-staters in federal courts.
As for Section 5, Rehnquist recognized that it grants Congress leeway in deciding how to enforce the Fourteenth Amendment, particularly when it comes to finding the facts and shaping a remedy. But then he cavalierly dismissed thirteen Congressional hearings, a report by a national task force that took testimony in all fifty states, census results and other studies as well as about 300 examples of state discrimination against the disabled, all cited in Justice Stephen Breyer's dissent. Even if all this did show a pattern of discrimination, Rehnquist wrote, Congress hadn't proved that the discrimination was "irrational," which he has defined elsewhere as "patently arbitrary." To comply with such a rule, however, Congress would have to evaluate the evidence for each of the instances of discrimination it relies on, an obvious impossibility and never before required of a legislative body. As a result, states can now violate Congressionally created rights for the elderly, pregnant women, the mentally retarded, the mentally ill and others with impunity, for they know they won't have to pay anything if sued.
Some six weeks earlier, the conservative Justices used a different technique in their campaign to undermine federal authority. Under the Clean Water Act, the Army Corps of Engineers regulates the discharge of landfill into "waters of the United States." In 1986 the corps issued a regulation, the migratory bird rule, which read the statute to include all wetlands used as habitat by migratory birds. When some Chicago suburbs tried to convert an isolated gravel pit that had become a pond used by migratory birds into a waste disposal site, the corps refused to allow it.
In another opinion by Rehnquist, the five conservatives struck down the corps regulation (Solid Waste Agency v. US Army Corps of Engineers). The pond was not connected to navigable waters, and for the majority this raised "significant constitutional and federalism questions" about whether Congress's power to regulate interstate commerce gave it jurisdiction over such sites. To avoid deciding the question, the majority said the Clean Air Act was not intended to authorize the migratory bird rule.
Reading statutes narrowly to avoid deciding "significant" constitutional questions is not unusual. But here there are no "significant" constitutional questions. A 1920 Supreme Court decision held that Congress may regulate matters affecting migratory birds, especially since bird-watching and hunting involve millions of people who spend billions of dollars on their recreation. The only way the conservative majority could justify striking down the migratory bird rule was by misapplying the avoidance rule.
Traditional deference to Congress has been replaced with a hostility and distrust not seen since the 1930s. And just as in the thirties, the conservative Justices' repeated blows at Congressional power constitute a major threat to Congress's ability to "promote the general welfare." So far the victims have included battered women, Indians, the elderly, gun control, the environment, the disabled. There will almost certainly be more.
For now, little can be done. But we can do something about the future. George W. Bush was put into office by Justices who have persistently cut into federal power in order to promote right-wing interests. We must persuade senators--of both parties--to block any Justices nominated by Bush who will pursue the same judicial agenda. Otherwise any Congressional or executive efforts to make this a more decent, safer America will be undermined by these Justices for years to come.