SINCE ANCIENT TIMES men have memorialized through writings engraved in the edifices of government, memorialized in the thoughts passed from ruler to ruler, memorialized in the institutions that subjugate the poor, the minorities, the legacies of war and the charters of ruling establishments, the clearest of all messages: power survives. It’s not goodness, not compassion, simply power— the power to do something, to effectuate change, or in most cases to maintain the status quo ante.
Why is it that millions are protesting across America? One answer: citizens are incensed by the murder of George Floyd. But, at another level, folks are protesting the injustices of what civil society ironically refers to as the criminal justice system: policing, adjudication, incarceration and rehabilitation. How we frame and execute the ends of justice begins with questioning the social compact, that is the legitimacy of the authority of the state over its citizens.
Justice itself is an abstract concept, until the lack of same results in real world consequences, such as poverty, illness, loss of freedom and death. The Constitution of the United States served to nullify Jefferson’s truism “all men are created equal” by openly acknowledging the institution of slavery, implicitly birthing a nation where wealth would dominate at the expense of lives. Where Black lives particularly would not be equal to White lives. This legacy has haunted this nation from its inception, which has spawned racism in nearly every instance of public life, albeit following the Jim Crow era, it went from openly practiced, to something more akin to implicitly practiced.
We need look no further for signs of discrimination than the statistics surrounding the current COVID-19 pandemic, where it’s having a disparate impact on minorities, not to speak of the aged and poor generally. Less obvious to some is that we have an analogous disparate impact related to minorities and the poor caught up in a criminal justice system that has consistently demonstrated a shallow regard for human life as witnessed by police killing unarmed men, women and children, for example, George Floyd, Breonna Taylor, and Tamira Rice, a 12-year old African-American boy.
Coming out of the 1960s I believed that progressive social change was around the corner, and that we’d conditioned our political, economic and cultural forces to move in a classless direction. But, by the 1980s, I’d realized that our country had yet to address crucial problems in health care, disability, women’s rights, gay rights, poverty, education and justice, juridical and social. For those of us that were beneficiaries of technological progress over the last 40 years, ten-fold of us have been left behind. Never, did I see this in starker terms than when I began defending those accused of crime.
By 1980, downtown Bridgeport, Connecticut, symbolic of many other cities around the nation had slid into a sea of urban blight. Stores on Main Street were mostly shuttered, swaths of vacant parking lots replaced what were once thriving office buildings, while white flight had swelled the suburbs. A few downtown buildings remained occupied, several banks, the post office, police station, and three courthouses. One courthouse, on Golden Hill, was an imposing reddish purple stone Victorian architectural anachronism, with 1877 inscribed on its cornerstone. To the thousands of criminally accused who’d ventured into these halls of justice, and for many, from there to prison and a few to a death chamber, the style was not a particularly important feature, but for me it stood as a metaphor for how little things had changed in the course of nearly 150 years.
Raised in the city and no stranger to its rough edges, as a newly minted lawyer in 1980, I had no practical understanding of criminal justice (full disclosure, as a twelve year old kid, I was summoned to Juvenile Court for vandalism). It only took a few months before I discovered that in courthouses throughout the country, such as the one on Golden Hill, the criminal defense lawyer lives life traveling through the bowels of a justice system, one deprived of society’s nutrients and beneficent. What residue of humanity that emerges from time to time hardly compensates for the dark sins of our collective dereliction of moral obligation to the impoverished, mentally ill and under-educated.
What is true today, was true 40 years ago, when then and now we deal with citizens in the same way. In light of Mr. Floyd’s killing, I challenged myself to recall my first encounters with the tragic inequities that repeated daily in what we refer to as the criminal justice system. I have scores of stories to draw from, but I chose Willie’s because in addition to him being my first client, his tale is remarkably common. This is not a story that will enrage us, but simply reminds us that for many of the poorest, injustice serves to retain the status quo at the expense of our humanity.
I met Willie just one time, and that was at the courthouse on Golden Hill. He came in the back that led to the defendant’s lock up. I entered through the front, which led to a rotunda with marble floors bordered by darkly stained oak plank walls, off which various doors lead to courtrooms, offices, toilets and other hallways. The far side of the rotunda, an oaken door nearly ten feet tall and six feet wide was guarded by a jailer. If you are a lawyer, the man dutifully turns a padlock putting you at the top of a stairwell as wide as the door and seventy stairs deep. It leads to a block of Dickensian cells below. I remember the stairs lighted by one sixty-watt bulb hanging from a linked chain midway down. Because the decent was so deep, the only thing I saw until the mid point was the bulb, which always provoked a mild anxiousness. Once passed my eyes couldn’t adjust enough beyond the darkness that enveloped the bottom of this subterranean stairwell.
When I reached bottom, the air was soaked in odors that turned my stomach: alcohol, sweet perfume, sweat, urine, feces, and vomit. The mold covering catacomb-like walls evidenced digs that had remained unaltered in over a hundred years. Deep in the vaults young men, mostly a little older than school boys, mostly Black were heaped upon one another waiting either for their day in court or at least to talk to a lawyer. Here I’d begin to record their run‑ins with the law, but helpless to medicate the cause of their real pain—poverty, anger, drug, alcohol addiction, a life disabled by an underprivileged education or the training needed to hold down a job in a factory town. I remember writing something that in retrospect would have been more appropriate as condemnation by a lawyer during the French Revolution, “So this is where we deposit the accused.”
Some cells were vacant, others held a single prisoner, and one large cell held many prisoners. A common scene was where twenty men were packed into a 20 X 20 holding cell, half of whom clutched a section of one or more vertical bars separating them from the rest of humankind. The cells surrounding it housed murderers, women on occasion, or someone who may have been sick beyond drunken heaves.
The incarcerated within the four corners of our prisons across this country cry alone. Justified or not, these atmospheres reek of anger, loneliness and fear. Imprisoned men and women not only fear what fate awaits them upstairs or outside their immediate confines, but what fate may await them while they wait. Humans come to growl and strike at the least provocation. Some more than others have a proclivity to violence. This coupled with a chronically large population of sociopaths and mentally diseased inmates results in as many violent crimes occurring inside these walls as outside. Most go unreported.
Eyes have a way of absorbing grief, self destruction, and defeat. Willie’s were bloodshot from the long night of questioning, a night of crying, his illness, and years on drugs. A life begun in hope and innocence as a child, ends here.
Peering into his cell, I saw a dark complexioned man on a dark wooden bench, who faded into the gray interior of mold covered granite. A barely perceptible face stared back drawn and unshaven. He wore a red plaid shirt torn at the shoulder from an unwarranted manhandling during his arrest. It hardly covered his torso. Bewildered, he raised his head when I called his name. “What’m I doin’ here?” he answered. He coughed from deep within his lungs. The guards had isolated Willie because from all appearances he was sick. His breath stunk. His body stunk. I considered the possibility of tuberculosis.
I never discuss the details of a crime during the interview; too many ears around. I spend time getting to know the client. I read Willie’s arrest report and learned that he’d been arrested for burglary. The report claimed that he’d broken into a residence on the outskirts. The home owner found him making a sandwich in the kitchen. Willie bolted from the house, but was caught by police a few minutes later as he walked down the block. He later said hadn’t resisted. I felt he’d almost welcomed the arrest, perhaps because he was hungry, cold and sick.
None of his behavior would have been too serious in the scheme of things, but Willie was a two-time loser out on probation. He risked being charged as a persistent offender. If convicted he’d be returned to prison to serve out three years of an unfinished ten-year sentence. Any punishment he received because of the current charges would be doubled. Not all, but most of these men are sentenced for triviality and then penalized throughout their lives as a result of the compounding offenses stemming from drug abuse.
Upstairs, later that morning, I waited for the judge, who eventually emerged from a solitary door behind the bench. “Sheriff open court!”
“Hear ye hear ye everyone stand attention according to law, this courtroom is now in session and anyone having orders or business stand before it the honorable Judge John Q. Ex-politician presiding.”
In this moment, men and women freeze. Seat searching halts. No one wants to draw the attention of the man in robes. It was 9:30 a.m. and within the hour Willie would be brought up chained to a gang of other arrestees.
Arraignment court serves as the intake for the criminal justice system. It’s the second stage, following the arrest, where carnival, calamity, triteness and vindictiveness all revolve, convolve, twist and coil Monday through Friday. Here society presents the spectrum of sociopaths, from nuisances to the nemesis that inflicts pain and insult upon anonymous victims. Others are simply motor vehicle offenders, the disorderly, the breacher of the peace, the junkie with a nickel bag of pot, all drawn from a pool of mothers, fathers, grandmothers and grandfathers and the lovers from last night, some illegitimate and some merely disputatious. There are the Willis, who fall somewhere in the middle. Most are folks who live in our towns, often next to abandoned factories, all sufficiently distant from the more affluent.
The judge looks at notes he’s read hundreds of times, “Ladies and gentlemen, when your name is called please come forward and you will be asked various questions. You may choose not to answer any questions and if you do not wish to answer any question I will not go any farther; you have the right under the constitution to remain silent and you are entitled to be represented by an attorney. If this is your first appearance before me, I will allow you a reasonable continuance to obtain the services of an attorney. If you cannot afford one let me know that too, and I will see if you are eligible to have me appoint one. During today’s session, you may wish to plead guilty and if you do, I shall inquire if you are doing so freely and voluntarily. If you do plead guilty and you are not a citizen it may affect you status here in this country and you a may be subject to deportation. If you wish you can let me know if you are not a citizen when you come up.”
Looking over at the prosecutor he says, “Proceed counselor.”
The prosecutor stands next to a large wooden table to the right of the bench twenty feet away. Piled high are scores of files that constitute today’s business. He reaches for the first. He looks in the margin and begins to speak as he opens the file in the way he’s opened thousands of files before.
The morning labors on, first traffic, then misdemeanors, then the arraignments. It’s almost my turn. Willie will be herded in with the first group from lockup. The prosecutor summons the sheriff to bring them in. He opens a door leading to a cage in the right side of the courtroom. Here the citizens of another world take their seats to await their second fate, the first being arrested.
When Willie’s name is called, he’s unshackled from his cohort, and with a sheriff on either side, he shuffles to the center of the room. I take my position behind him. The clerk reads the charges against Willie. A synopsis of the allegations follows. Then the judge asks Willie, “How do you plead?”
The clerk turns and looks at me. “Good morning your honor… Not guilty your honor, trial by jury, please schedule this for a pretrial in one week…your honor.”
I bow my head ever so slightly in the direction of the most powerful man in the room to satisfy custom and complete the ritual.
The prosecutor then reports that Willie will be held on $20,000 bail, to which I respond, “Your honor may I be heard on the bail.”
No chance exists for Willie to make bail. I then make the routine argument that he remains innocent until proven guilty, that he hails from Bridgeport, that he needs medical treatment, and that although he’s on probation, he has dutifully reported to the probation officer since his recent release from prison and therefore would likely not flee the state.
In rapid fire, the judge seals Willie’s fate: “Motion denied; next case!”
“Your honor, can you order that he be provided medical attention, please.”
“Counsel, I think the detention center will act if it deems it necessary.”
Thus another life resumes many more years behind bars, if it survives that long. Unless Willie’s luck changes, he can’t expect freedom for at least another three years and probably ten if what seems to be an impending preordained conviction leading to a penalty for being a persistent felon.
Ironically, we functionaries must now say, “Thank you,” as we back away from the bench.
Willie thanks me, and then out of the corner of my eye, I see him shunted off to a side door that leads to a door-less labyrinth that leads to the cells below.
I never saw Willie again. A week later he would be transported from the detention center back to the courthouse for a pretrial. By then another lawyer would know more about the charges and decide either to go to trial or attempt to plea bargain. I wondered what life would have been for me on this day if I’d been richer or poorer, if I’d embarked on a life of vandalism and who knows what from there, for whatever reason young people act out. For sure I wouldn’t have witnessed how justice refracts, reflects and mostly attenuates social justice.
We seem incapable of seeing ourselves as we truly are, never grasping that we are this system we named justice. We shut our eyes to the millions of incarcerated souls, without distinction. These include the ones accused of a crime, but not yet tried, and still others convicted of economic, drug related crimes. Of course others are wrongly convicted, and yet serve sentences victims of imperfect human systems. And, yes others who are convicted of heinous crimes, typically involving violence. But, regardless each person needs to be treated with dignity. We do this as much for them, as for ourselves as guardians of our own soul, essence and humanity.
That we do not show greater outrage for injustices in our name, may be that it’s all part of the American way, that part of our fabric, individually and collectively. We are the ones that allow the perpetuation of a judicial system, vacant in its compassion and understanding of the sanctity of human life regardless of fault. To this point, for more than a generation, the U.S. has had the largest prison population in the world, currently about 2,150,000, the highest per-capita incarceration rate in the world held in over 200 jails, prisons, and tents across the country—many privately owned. Each of us bears responsibility for putting people behind bars in numbers that defy a reasonable explanation.
So, why is it that millions are protesting across America? Because maybe, just maybe we have decided to take charge of this amorphous abstraction called justice.