News and Features
On October 31 Governor Jane Swift of Massachusetts pardoned five women who had been convicted and executed in the Salem witch trials in 1692. Well, better late than never--what's a few centuries one way or another? Once you're dead you have all the time in the world. It's the living for whom justice delayed is justice denied, and on that score Governor Swift is not doing so well. On February 20 she rejected the recommendation of the state parole board, known for its sternness and strictness, and refused to commute the thirty-to-forty-year sentence of Gerald Amirault, who was convicted in the 1986 Fells Acre Day School child sex abuse case and who has already served sixteen years in prison. Violet Amirault and Cheryl Amirault LeFave, his mother and sister, who were convicted with him, served eight years before being released.
Since the l980s, when a wave of now notorious prosecutions of alleged ritual child sex abuse swept the country, many of the techniques used to elicit children's stories of abuse have been discredited: leading and coercive questions, multiple reinterviews, promises of rewards, suggestive use of anatomical dolls. It's no longer iron-clad doctrine that certain behaviors, like bed-wetting, masturbation and sexualized play, reliably indicate sex abuse. The slogan of the prosecution and the media was "believe the children"--but what that really meant was don't believe the children if they insist that nothing happened, if they like going to daycare and readily hug their alleged abusers; only believe the children when, after relentless questioning by interviewers, therapists and parents, they agree that something terrible happened and eventually come to believe it, as the Fells Acre children, now young adults, still do. As Dan Finneran, the Amiraults' lawyer until 2000, puts it, the case represents "a closed system of thought: denials, recantations and failure to remember are categorized as manifestations of repression and fear and thus stand as confirmations of actual abuse." If no means yes, and yes means yes, how do you say no?
All these issues featured in the Amirault case. The result was that a respected working-class family who had run a popular daycare center in Malden for twenty years--a place that parents were constantly popping in and out of--were convicted of a total of twenty-six counts of child abuse involving nine children in trials that included accusations of extravagant and flamboyant sadistic behavior: children being anally raped with butcher knives (which left no wounds), tied to trees on the front lawn while other teachers watched, forced to drink urine, thrown about by robots, tortured in a magic room by an evil clown. One child claimed sixteen children had been killed at the center. Obvious questions went unasked: How come no kids who went to Fells Acre in previous years had these alarming experiences? Why was an expert witness permitted to testify about a child-pornography ring when no pornographic photos of the Fells Acre kids were ever found?
Governor Swift made a big show of looking seriously and long at Gerald Amirault's case, but she failed to consider the central question, that of whether he was guilty of any crime. Indeed, Swift made Gerald's refusal to admit guilt and get treatment as a dangerous sexual predator a centerpiece of her decision--but why should an innocent man have to say he's guilty to get out of jail? Gerald has been a model prisoner: He's taken college courses, he has worked, he has a flawless record. He has the total support of his wife and children and a job lined up in anticipation of his release.
Swift claims that her main consideration was whether Amirault's sentence was in line with those of others convicted of similar crimes. She cited the case of Christopher Reardon, a lay Catholic church worker who pled guilty to seventy-five criminal counts of abusing twenty-nine boys last summer and received a forty-to-fifty-year sentence. But the case against Reardon was open and shut; he took photos and videos, and even kept spreadsheets detailing his crimes. The real cases to compare with Amirault's are those of his mother and sister, who were convicted of the same crimes, although slightly fewer of them. Cheryl Amirault LeFave and Violet Amirault received sentences half as long and were released after serving half as many years as Gerald. Does Gerald's being a man have something to do with these disparate outcomes? Absolutely. The women benefited from the leniency still--if fitfully--bestowed by the justice system on women. Moreover, as the case against the Amiraults came to look more and more troubling with hindsight, the original scenario, in which the three were equally involved in molesting children, was replaced by a theory, never put forward during the trials, that Gerald was the ringleader and the women his dupes. How could this be? The evidence against the three was the same.
At her press conference, Governor Swift refused to discuss the case against Gerald and three times declined to respond when asked how he had failed to demonstrate good behavior in prison. The clear implication is that her motives were political: With Massachusetts in an uproar over the ongoing scandal of pedophile priests, to commute Gerald Amirault's sentence would have made her vulnerable in November when, as a not very popular or experienced Republican appointee, she faces an uphill struggle for election. What an irony--the Catholic Church protects genuine child molesters for decades and thereby creates a political situation in which an innocent man is trapped in jail. But Swift's calculation is backfiring. The Boston Globe, the Boston Herald, the Boston-based Christian Science Monitor, the Berkshire Eagle in Swift's home county have all editorialized against her decision; polls show wide support for Amirault's release.
Massachusetts--liberal, modern, technocratic Massachusetts--is the only state in which people convicted in the 1980s wave of ritual child abuse cases are still in prison. Bernard Baran, whose case shares many features with that of the Amiraults, with the added strike against him of being homosexual, has been incarcerated for almost half his life. Meanwhile, Scott Harshbarger, the DA who originally prosecuted the Amirault case, is now head of Common Cause. Will it take another 300 years for the state to acknowledge that Salem was not its last miscarriage of justice?
Race riot victims still wait for promised reparations.
Barbara Coe is not your typical sixty-something silver-haired-senior-in-polyester.
Enron, maker of big promises and big donations, stands revealed as a four-flusher.
On August 21 in Lake Charles, Louisiana, a struggling oil-refinery town on the Texas border, Wilbert Rideau walked to the center of the modern courtroom, hobbled by shackles. The man Life magazine called "the most rehabilitated man in America" lifted up his furrowed brow and looked at the judge. And stillness came over the crowd of mostly elderly blacks, as Rideau pleaded not guilty to a murder committed forty years ago.
Interest in the case lies not in Rideau's innocence or guilt. On numerous occasions he has accepted responsibility for murdering a woman after robbing a bank in 1961. Rideau, 59, received the death penalty, but by an accident of history, lived to become a famous journalist. As editor of a prison magazine called The Angolite, he has won almost every journalistic award and become a national expert on prison life; he's been "Person of the Week" on World News Tonight with Peter Jennings and a pundit on Nightline--all from behind prison bars in Angola, Louisiana. In 1994 Rideau's lawyers, in a last-ditch effort to free him, filed a habeas corpus petition in federal court. In December 2000 the Fifth Circuit Court of Appeals in New Orleans found that the original prosecutor of the case had excluded blacks from the grand jury in blatant violation of the Constitution, and ruled that the state must retry Rideau or release him.
This year Rideau is set to stand trial in the same Louisiana town where he was first convicted forty years ago. Many thought that Lake Charles and Calcasieu Parish would look the other way rather than reprosecute an age-old case with lost evidence and a manifestly rehabilitated defendant. Rideau's lawyers have said he would settle by pleading guilty to manslaughter and walk away with more time served than all but four convicted murderers in Louisiana history. But the state won't offer any deal.
The reason can be found in Lake Charles, a town where redemption may not be possible when a black man kills a white woman. Powerful people in the parish have blocked Rideau's release, whereas other inmates sentenced for similar crimes have received parole. During Rideau's time in Louisiana State Penitentiary in Angola, nearly 700 convicted murderers have been freed. Four pardon boards have recommended Rideau for release--but two governors have denied clemency. "Why Not Wilbert Rideau?" was the title of a 20/20 segment exploring why he has not been able to get parole. "I think he is a con artist," said District Attorney Rick Bryant. "He's a master manipulator of the media and people who have supported him."
The vehemence stems in part from the fact that Rideau is a prosecutor's nightmare. This is the fourth time the parish has tried him. Each time Rideau is convicted, he appeals and exposes shameful structural flaws in how the justice system here really works. And he's doing it again. This past November 29 the Louisiana Supreme Court struck down the parish's process for selecting judges in capital cases, which the court faulted for allowing judge-picking, a practice used by prosecutors to obtain judges favorable to the state. The prosecution had filed its new case against Rideau when the only ball left in the bingolike hopper was the one for Michael Canaday, a white judge who had never before tried a felony. After watching Judge Canaday in court, Marjorie Ross, 68, a retired department store salesperson, said, "I look back forty years ago and things haven't changed. It's because of this." She pointed to her dark-skinned face.
But the new judge, selected "at random" with all seven balls in the hopper, happens to be one Wilford Carter, who is black and was elected from a black district with many voters fixated on this case. It's a boon that has become Rideau's signature--the grace of luck appears just when it seems to have run out. "The fact that I excelled beyond anybody's wildest expectations not only vindicated official decisions but increased the hostility of my enemies," Rideau said in a series of telephone interviews. "Everything I became, everything I have achieved, has been in spite of this unholy force from Lake Charles dedicated to destroying me and denying me the ability to be anything more than the criminal they wanted me to be."
His crime has been hard for the town to forget. According to the original prosecutor, Frank Salter, on February 16, 1961, Wilbert Rideau, then 19, knocked on the door of the Gulf National Bank at closing time. Bank manager Jay Hickman unlocked the door. He knew Rideau as the errand runner at Halperin's, the sewing shop next door, who would fetch sodas for bank employees, until the relationship became too friendly for the whites. "We stopped [asking him for sodas] because he started talking," said victim Dora McCain in her trial testimony, "calling us by our first names. So we just--we just got a refrigerator for the bank." That day, Rideau produced a gun and demanded that Hickman empty the money drawer. Rideau put $14,000 in a gray suitcase (leaving $30,000 on the floor and in coffers) and forced Hickman and two women bank tellers into a car. They drove to a country road in a wooded area, where Rideau lined up his three hostages and began firing. One bullet landed in Jay Hickman's arm. Hickman rolled off into a bayou out of sight. The two women fell to the ground with gunshot wounds. Julia Ferguson, 49, cried out, "Think of my poor old daddy," who lived with her. "Don't worry, it will be quick and cool," Rideau allegedly said before slitting her throat and stabbing her in the heart. Ferguson died at the scene. Rideau approached the other teller, Dora McCain, a pretty twentysomething with a well-known family, who lay face down. He kicked her in the side three times to see if she was dead. When she didn't cry out, Rideau took the car and left. Two state troopers stopped Rideau in his car as he was leaving town. They found the suitcase with the money in the back seat. (Rideau's counsel declined to comment on the facts before trial.)
That year, the first of three all-white, all-male juries convicted Rideau and sentenced him to death. Rideau appealed on grounds that a TV station, KPLC-TV, had secretly filmed the sheriff posing questions to Rideau, who had no access to a lawyer, and aired his mumbled answers as a confession. The US Supreme Court slammed the parish's "kangaroo court proceedings" and found that the broadcast had unfairly prejudiced the jury pool. The Court reversed the conviction and said Rideau could not be tried anywhere within the reach of KPLC. In 1964 at a second trial, in Baton Rouge, the jury deliberated for fifteen minutes before deciding to give him the electric chair. Rideau appealed again, and a federal court overturned his conviction on grounds that the state court had rejected jurors with doubts about the death penalty, in effect stacking the jury with death penalty proponents--a violation of due process. In 1970 at a third trial, in Baton Rouge, the jury took eight minutes to give Rideau the death penalty. His appeals were unsuccessful, and he returned to death row--just in time to benefit from Furman v. Georgia, the 1972 Supreme Court decision that temporarily found the death penalty unconstitutional. As a result, every death-row inmate in America, including Rideau, had his death sentence commuted to life imprisonment.
Rideau won't comment on the crime because he is facing a new trial. But he agreed to talk about the person he was at the time and how he has changed. Though he usually speaks quickly, in perfect sentences, his cadence is deliberate in describing the man he was when he entered prison. "I wouldn't recognize him today," he said. "I was typical in a lot of ways. I was another dumb black, immature, angry. Not even aware that there is a world bigger than me." He says he had a fairly normal childhood, moving to Lake Charles when he was 6. "My home life wasn't the best," Rideau says. "But that doesn't say much because a lot of people's family lives weren't." His problems, he says, began during adolescence. "People used to pass by and they would throw Coke bottles and spit and holler at you," he says. "You could be walking by with your girl and they would call at you talking about you--'Hey nigger, blah blah blah, whatever.'" Rideau knew it wasn't directed at him alone. But he took it as "the end of the world." "I saw whites as enemies responsible for everything wrong with my world. Whites created this bizarre segregated world where racism ruled," he says. In his segregated school, he dismissed the hand-me-down books from white schools, which held forth ideas of "rights" and "how life was so wonderful." Though he had a straight-A average, he quit school in the eighth grade because he saw no use for an education. "I wanted to be a spaceman like Flash Gordon," he says. At 13, he began a series of low-paying jobs and spent most of his time in pool halls and gin joints. "I didn't even know the name of the governor of the state," he said. "I was totally out of it."
Eventually, he became an errand runner in the fabric shop, his last job before being sent to Angola. In prison, he noticed the strange ethics of prison life, starting with white guards who smuggled him novels and science texts. "I read a library on death row," he says. And in a Baton Rouge jail, where he stayed for part of his appeals, Rideau lived in the segregated white section as punishment for leading a "strike" in protest against prison conditions--flooding the commodes and burning mattresses. When Rideau led white prisoners in a strike as well, the prison put him in solitary confinement. And to Rideau's shock, whites began secretly sending him food and kind words. "Whites started taking care of me," he said.
Within the first year of his life sentence, Rideau asked to join the then-all-white newspaper, the Angolite, only to have administrative officials turn him down. "I read in the paper that they couldn't find a black who could write," he says. The rejection stung. Over the past decade, he had penned a book-length analysis of criminality and corresponded with a young editor at a New York publishing house, who tutored him in the art of writing. Rideau rounded up an all-black staff and started The Lifer, which chronicled stories like that of a group of elderly women who brought a truckload of toilet paper to the prison and were turned away. Eventually, the administration put him out of business. "They threw me in the dungeon saying I was advocating insurrection," he says. White prisoners petitioned a black senator to demand Rideau's release from solitary confinement. "Along the way, the whites that I initially saw as enemies befriended me and fought for me, not blacks," he says. "That experience caused hell with the way I saw things."
In 1975, the warden made Rideau editor of the Angolite as part of compliance with a federal court order mandating integration of the segregated Angola prison. A year later a new warden, C. Paul Phelps, arrived and offered to strike a deal. Phelps promised that the Angolite would operate under the same standards that applied to journalists in the free world--he could print whatever he could prove--so long as Rideau would teach him about life at Angola. Over the years, the two men had many philosophical and political discussions. And they ate together in the dining hall. "He told me that like begets like," Rideau says. Phelps permitted Rideau to become a public speaker, a reward for well-behaved prisoners to travel and explain the dangers of prison life to youth at risk. And with his new freedom, Rideau jettisoned a longtime plan to escape. "The thing that is most respected in prison is character, loyalty, keeping your word," says Rideau. "These are things that are highly valued in the real world, but they are really, really valued in ours." This and the passage of time have changed him. "Part of it is just growing up," he says. And growing up has meant a realization that he may die in prison. Since 1997 Rideau has been president of the Angola Human Relations Club, which cares for elderly inmates by providing such essentials as toiletries, warm caps and gloves, and which buries the dead.
After Rideau became editor of the Angolite, the paper changed from a mimeographed newsletter into a glossy magazine exposing systemic problems and an emotional inner life. One story revealed that the Department of Corrections had doled out money for AIDS programs that were never implemented. Another issue featured pictures of inmates after electrocution--a portrait so horrifying that Louisiana changed its method to lethal injection. The magazine has won seven nominations for a National Magazine Award, and Rideau has won the Robert F. Kennedy Journalism Award, the George Polk Award and an Academy Award nomination for The Farm, a documentary film about Angola that he co-directed. He co-edited a book, Life Sentences (Random House). He addressed the convention of the American Society of Newspaper Editors in 1989 and 1990. And he's a correspondent for National Public Radio's Fresh Air program. While Lake Charles watched, the man many faulted with ushering in an era of crime became a nationally respected writer and commentator. "There's no way you're going to give life back where it's been taken," Rideau opined on Nightline in 1990. "But you--you just try to make up.... When it's all over and done with, Wilbert Rideau will have tried."
One blistering August afternoon in Lake Charles, I locked my keys in my rental car and called "Pop-A-Lock" for help. As owner Jim Rawley jimmied the lock, he recalled the night Rideau committed the crime. Rawley was in high school then. His friends wanted to kill Rideau and mobbed the courthouse. "There was a group of vigilantes among us," he says. "I can't remember the specifics. But I remember the atmosphere. Macho kind of stuff, except that we were scared too." Years later, Rawley became a Calcasieu Parish deputy and knew Rideau, who was awaiting trial in the Lake Charles jail, as "a troublemaker." Once, he says, a friend and fellow officer "beat the hell out of [Rideau]" for being "belligerent and uncooperative." When asked if he thought Rideau had changed, he said, "By all appearances he has rehabilitated himself, for lack of a better word. He seems to be a different man than he used to be. But that doesn't negate what he did.... It doesn't change the fact that he was convicted three times. He has never claimed that he didn't commit the crimes. He is fortunate he didn't receive the death penalty." He also said Rideau is a burden to the courts and should stop appealing his case. "If he's a different person he needs to go through the pardon board," he argued. But everyone knows that governors have blocked his release. Rawley shrugs, "It's already been decided, then."
Rawley's reaction was typical of whites I met. Rideau's good actions matter little next to the fact that he escaped the death penalty, as if death had somehow been cheated. And one has to wonder if there isn't some jealousy of his fame in the world outside Lake Charles. Elliott Currie, a professor of criminology at the University of California, Berkeley, calls the unceasing and vindictive punishment of those who have committed bad acts, without regard for the genuineness of their remorse or rehabilitation, "punitive individualism." Law-abiding people don't want prisoners to have anything they can't have--thus the 1994 elimination of Pell Grants (federal educational scholarships) for prisoners and the conflicts over whether taxpayers should pay for weightlifting equipment for prisoners. Rideau represents the extreme of this line of thinking: Most of us are never going to get to be on Nightline. Why does this murderer get to do it? Many white observers view the legal mistakes in his case as technicalities, and his appeals a waste of taxpayer money. After the arraignment, a blue-blazered security guard grabbed my hand very tightly and muttered, "If I killed your grandmother could you rehabilitate her?"
And the more well-known a defendant, the more the public focuses on preventing release. In this sense, Rideau is not unlike famous white prisoners who can't get a break despite impeccable prison records--like Kathy Boudin, the former Weather Underground radical, denied parole last August for a 1981 murder conviction; or Karla Faye Tucker, a convicted murderer executed in 1998, even after the victim's brother begged Texas Governor George W. Bush to pardon her. Their violent offenses do not elicit leniency. "It's not that people are afraid he is going to do it to her again," says Currie. "They are saying, 'Anybody who does this can't be free again; in our moral universe that can't happen.'" This attitude pervades public policy. Federal laws passed in 1994 provide matching funds to states to keep violent criminals in prison longer by denying parole.
But perhaps the biggest strike against Rideau is his race: No black man convicted of murdering a white person in Lake Charles has ever been released from prison, according to The Rideau Project, a research effort at Loyola University in New Orleans (see www.wilbertrideau.com). Whether or not people were alive at the time of the crime, feelings seem to be as strong as they were forty years ago. A 33-year-old white saleswoman at an electronics store, who asked not to be identified, said, "He should die the same death like everyone else," adding that she had to put her kids in private schools because of the "kids who cause trouble." She then mouthed the word "blacks." Her co-worker, a 30-year-old white man, used lynching imagery to say he agreed: "They should have swung him a long time ago." But then he asked, "What did he do?"
This is what gives District Attorney Rick Bryant his mandate. He's up for re-election in November, which means trying Rideau during campaign fundraising season. In two conversations, one at his desk and a second in a downtown bar, he said that even if Rideau were rehabilitated (and he wouldn't admit this), he would reprosecute. "He did the crime, didn't he?" Bryant refuses to recognize his own prosecutorial discretion, implying that he actually doesn't have the power to decide not to prosecute. This may be true, but only in the sense that his political survival in this majority-white town depends on a conviction. "They are trying to make me into a glorified pardon board. I am not a pardon board. I am a DA. Like I should be God of this case! Like I don't care! Or that I should decide he's a good guy in prison! That is not my job. The only reason I would not retry him is if there is no evidence, he's innocent or the victims want his release," he says. I suggest that his job is to seek justice, not just to convict, and that a retrial can only divide the town. "They line up and tell me to keep him in prison," Bryant says.
Of course, there are those--mostly black and some influential whites--lining up on the other side, too. Cliff Newman, an attorney and Democratic state senator from 1980 to 1988, once lobbied the governor to keep Rideau in prison at the behest of Dora McCain, the only victim who is still alive today. In the following years, Newman met Rideau in Angola at the prison rodeo and followed his story in the media. Today Newman has changed his mind: "From a political point of view it is not popular to ever say a murderer should be released. But I am not in politics anymore. And I am not going to be. Everyone is capable of rehabilitation."
Even conservative whites are hard pressed to argue that Rideau is not a different man today. Bill Shearman, owner of the town's conservative weekly newspaper, said, "Well, yeah, I think Rideau is rehabilitated," explaining that his view isn't representative. "Only a scant minority realized he has changed." Jim Beam, 68, a columnist of the American Press, the conservative daily that has opposed Rideau's freedom, admitted, "If you asked me if he's rehabilitated I would say yes." And Peggi Gresham, retired assistant warden and Angolite supervisor for twelve years, said, "I am not a bleeding-heart liberal. I don't think that everybody should get out. But when a person is as successful as some individuals are they can get out and have a good life. Wilbert is one of those people."
Young black professionals I met generally thought Rideau should be released because he has changed but see his plight as a remnant of past prejudice that doesn't really concern them. Rideau's real support in Lake Charles has come from the local NAACP and black press who believe that Rideau didn't commit the crime alone and is part of a larger conspiracy. "Blacks don't rob banks and they don't commit suicide," says Lawrence Morrow, publisher and editor of the black magazine Gumbeaux. Rideau had a good job, they argue, at a time when it was difficult for blacks to find jobs, and he took only $14,000, leaving $30,000 in the bank. Joshua Castille, 73, a retired black law enforcement officer, had drinks with Rideau the night before the crime and saw no peculiar behavior. He believes Rideau acted in concert with bank manager Hickman. Even back then, he said, a bank would never open its doors after closing hours. For a black person? "For anyone," he says. "They just wouldn't do it." The contrasting perceptions of the Rideau case among blacks and whites is emblematic of the different ways the two groups view crime, as well as issues like the death penalty. "Blacks are more likely to understand that people like Rideau are less likely to have committed the crime because they are monsters than because of circumstances that put them in that situation-- 'there but for their fortune go I,'" says Currie. "And they know that the criminal justice system has been pushed toward punishing blacks more than whites for as long as the justice system has existed."
Rideau's trial could go either way. On the one hand, Lake Charles elects its judges and Judge Carter is accountable to a black constituency that cares about this case enormously, which could mean openness to arguments about prosecutorial vindictiveness. On the other hand, when Carter's son, then 16, was charged with second-degree murder, he received a plea deal from Bryant reducing the charge to manslaughter--which, critics say, could predispose the judge to be friendly to the prosecution. And while, after so many years of appeals, the evidence is mostly lost, Dora McCain's lawyer, Frank Salter, the original prosecutor, said she would testify, which could mean a conviction based on her testimony alone (McCain did not respond to interview requests). Rideau's lawyer is the formidable George Kendall of the NAACP Legal Defense & Educational Fund, but it isn't yet clear how Judge Carter feels about counsel who swoops in from New York.
Rideau says if he does get out, he wants to leave Louisiana and write two books. "And neither one of them is about me," he says, explaining that he hopes to redefine criminality. "But I am telling you they are going to give me the Pulitzer Prize for this." It's hardly what Lake Charles wants to hear. When does he believe punishment should stop? "Whatever it should be, it should be," he says. "But it should be equal."
The city of Portland is resisting calls from the Justice Department to racially profile its residents; predictably, right-wing pundits are enraged.
A Democratic Congressman relates what happened when a large California city rebelled against privatization of its electricity.
The state's justice system crushes poor people like Ernestina Rodriguez.
New York's City Council is about to open a promising new front in the global struggle against sweatshop exploitation--a city procurement ordinance that requires decent wages and factory conditions for the apparel workers who make uniforms for New York's finest. Mayor Giuliani huffily vetoed the measure, denouncing it as "socialist economics," but since the Council passed it 39 to 5, a veto override is expected. New York City spends up to $70 million a year on uniforms for police, firefighters, sanitation, park and other employees. The city is a customer with clout.
The new ordinance was drafted and promoted by UNITE (Union of Needletrades, Industrial and Textile Employees) with a unique feature--a global index for determining "nonpoverty" wage levels, country by country, based on objective economic data. The law would require any apparel manufacturer, domestic or foreign, to certify that its wages meet the standard--before the city will buy the company's goods. "The city should not spend its citizens' money in ways that shock the conscience of a vast majority," the Council report declared.
What is more significant, however, is that New York's initiative should reopen a path for local legislative activism on global issues. New York has created a model that city and state governments across the country can use to legislate their own procurement rules against sweatshop conditions. As of last year, the subject seemed closed. The Supreme Court nullified a Massachusetts law boycotting companies that do business with Burma, known for its brutal repression of workers and citizens. The Massachusetts statute was badly drawn and clearly suggested that Boston was trying to make foreign policy--power the Constitution gives to Washington. The New York ordinance has been cast to avoid those flaws, though it will certainly be challenged in court (Mayor Giuliani promised to lead the attack).
"The apparel industry has become a global factory where there are no standards," says Steven Weingarten, UNITE's director of industrial development. "This bill connects the customer with standards for decent conditions and a decent wage. The uniformed unions--police, firefighters and others--are very supportive. To wear uniforms made by people in sweatshop conditions is not what they want to stand for. There are 80,000 apparel workers in New York City, and it should at least stop rewarding the irresponsible manufacturers, both in the United States and abroad."
The principal mechanism for enforcement is disclosure. To complete a sale, a company must certify where the goods were made, including locations of subcontractors, and that it is producing as a "responsible manufacturer"--that is, complying with relevant wage, health, environmental and safety laws, not abusing or discriminating against employees and providing the nonpoverty wage determined by national economic context. If a company files a false report and violates the standards, it could be fined or barred from contracting with the city or sued for civil damages. The reporting system opens the door for citizens to submit facts, and the companies must permit independent monitoring of their factories if city officials request it.
Professor Mark Barenberg of Columbia Law School, chairman of the governing board of the Worker Rights Consortium, believes UNITE's draft legislation is immune to any accusation that New York City is poaching on federal territory, either the regulation of interstate commerce or the executive branch's exclusive domain of foreign relations. Among its flaws, Massachusetts' Burma law targeted a single country with the goal of forcing policy changes, and the boycott rule attempted to hold US corporations responsible for a foreign government's actions. In the New York legislation, the terms apply to any seller of apparel, regardless of location, and involve issues that are already accepted in state-local procurement laws (though not usually applied to foreign production). Under the interstate commerce clause, cities and states are forbidden to discriminate against other states by targeting their producers with anticompetitive restrictions. But, Barenberg explains, "when a city or state acts like a consumer--a market participant itself--it can discriminate in the ways any consumer does."
If a city decides its citizens are offended by abusive working conditions or exploitative wages by producers outside its jurisdiction, it cannot enact a law to stop them, but it can refuse to buy their goods. "It would be a radical act of the Supreme Court to overrule the 'market participant' doctrine and say states and cities may not choose to reject products from foreign countries because they don't want to buy from sweatshops," Barenberg observes.
Of course, the Rehnquist Supreme Court has demonstrated that it is fully capable of "radical acts" in pursuit of right-wing results. Among its various rationales, the Court might declare that while the New York ordinance alone does not damage constitutional balance, the prospect of scores or hundreds of communities enacting similar measures would be intolerable. In the meantime, however, widespread agitation from the grassroots is precisely what's needed to build a fire under the seat of government in Washington. That's how democracy was supposed to work--let the Supremes analyze that.
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