Monday, November 27, 2006

Mumia Abu-Jamal and the Unconstitutionality of the Death Penalty.

What is a rebel? A man who says no: but whose refusal does not imply a renunciation. He is also a man who says "yes" as soon as he begins to think for himself ... He rebels because he categorically refuses to submit to conditions that he considers intolerable and also because he is ... conviced that his position is justified, or rather, because in his own mind he thinks that "he has the right to" ... Rebellion cannot exist without the feeling that somewhere, in some way, you are justified.

We must take the great civilizing step of abolishing the death penalty.

Albert Camus

We live in the age of legal sleight-of-hand. Mysticism and mumbo-jumbo are found in American courts much more than in places of worship. The American legal system has too often become a mechanism of oppression in our late capitalist wonderland, a cruel lie, a shameful betrayal of the promise of the U.S. Constitution for which so many brave Americans have fought and died.

If there is a single hope at the heart of the U.S. commitment to a government of laws and not of arbitrary whim on the part of rulers, it is the hope that legal rights will be recognized to constrain the actions of government. It was once unproblematic to assert that no one would be confined in an American prison without due process of law; no one would be subjected to Star Chamber-like "secret" proceedings; no one would be tortured or be made an unwilling subject of psychological experiments. None of these claims can be made today.

I am saddened and dismayed to comment on developments that I never imagined would become "issues" in American political and jurisprudential discourse. A weariness steals over the soul and a paralyzing feeling of hopelessness afflicts us when contemplating the spectacle of corruption and filth in state courtrooms -- courtrooms where men and women are deprived of their liberty and wealth every day, with no semblance of legality, decency, or even transparency, only a naked and brutal use of power that is thinly veiled with the forms and rhetoric of law, even as justice is denied.

Victims of such legal frauds -- and I can relate to this -- must live with the knowledge that their torturers and oppressors are thriving as a result of the very injustices and crimes to which victims have been subjected. You can only "kill people in electric chairs" by speaking of "terminating petitioner's appeals so as to carry out the legally mandated penalty." This is to invoke jargon and ideology for the sinister purpose of obscuring the moral reality before our eyes. You are killing human beings if you approve of the death penalty.

How did things reach such a level? When did we lose our democracy and system of laws?

Merely having a Constitution in place as a form of decoration, an attractive display under glass, yellowing with age, may be worse than simply admitting that the American experiment in freedom under law has been abandoned or that "we" (at least some people who wield power) have decided that this experiment in freedom has failed:

The "Military Commissions Act of 2006," which passed both houses of Congress in late September, will ensure that the U.S. government can do openly what it had to cover-up until recently. The bill grants the president wide leeway to interpret the meaning and application of the Geneva Conventions, institutes military tribunals for the prosecution of "unlawful combatants," and allows the CIA and the U.S. military to conduct "alternative interrogation procedures" (read: torture).

Everything the framers hoped to abolish when they drafted the Constitution is restored in this legislation, which "sets the clock back a thousand years on legal rights":

The new law legalizes such practices as waterboarding (holding a victim's head under water to induce gagging and fear of drowning), sleep deprivation, and psychological and mental stress techniques in interrogations.

All of these methods are used already (secretly) in New Jersey, where shrinks are paid to question people (also secretly) under hypnosis, often raping and stealing from them for good measure. Sexual assaults on incarcerated men and women -- often by authority figures, even "therapists" -- are not uncommon. (See "The Tuchin/Riccioli Torture and the Constitution in New Jersey" and "Terry Tuchin, Diana Lisa Riccioli, and New Jersey's Agency of Torture.")

In the military tribunals endorsed by the new law, defendants' statements obtained through torture and coercion will be admissable, as will hearsay evidence and evidence obtained without a warrant. The bill also ratifies the legality of indefinite imprisonment at U.S. military prisons like the one at Guantanamo Bay, Cuba.


... anyone designated an enemy combatant can be denied the right to habeas corpus. Habeas corpus petitions allow defendants to challenge their unlawful imprisonment and to seek their release if their cases were tried unfairly. By suspending [this most ancient writ in common law,] the new law takes human rights back to the thirteenth century.

Nagesh Rao, "U.S. Congress: Legalizing Torture," in International Socialist Review, November-December, 2006, at pp. 6-7.

Nowhere is the cruel barbarism resulting from American legal mendacity more obvious or unethical than in capital punishment jurisprudence. As I contemplate photos and portraits of pontificating hypocrites, presuming to judge the lives and values of others -- deciding who lives or dies -- usually displaying a sickening self-satisfaction and smugness, a visible contempt for ordinary persons, as in New Jersey, I despair of any possibility that reason and rational arguments can ever reach minds dwelling in such darkness, consumed by such greed and "amusement" at the suffering and pains of others. "We can learn from you," torturers say.

I have been laughed at and insulted by such persons. More than anger, I feel great sadness when pondering the effects of power on mediocrities who delight in depriving men and women of that dignity which even the humblest person must be allowed in facing tragedy and death, thus achieving the ultimate corruption not only of the law, but of themselves and their black robes. What have you become? ("Is New Jersey Chief Justice Deborah T. Poritz unethical or only incompetent?" and "Neil M. Cohen, Esq. and Conduct Unbecoming to the Legislature in New Jersey.")

I am heartened today to learn that for many people throughout the world -- and in this country -- such experiences of humiliation and violation are a badge of honor. Compare any group portrait of the New Jersey Supreme Court Justices with this image
Do you believe that these affluent persons, depicted in their flowing black robes, are capable of understanding what is shown in this image of affliction? I doubt it. Unfortunately, those judges are all that stands between you and the power of the State. This is not only worrisome, it is terrifying. I cannot be certain of when the next obstruction campaign will be directed against my computer. Despite the First Amendment, it would not surprise me if state government agencies or courts are involved in efforts to silence critics, like me. I will do my best to express my opinions quickly and briefly. The death penalty today is unconstitutional. It cannot be made "fair" in a society burdened with America's history of class and racial bias.

The death penalty is a grotesque and archaic form of punishment, which has been abandoned in most "advanced" societies in the world. The disproportionate imposition of death as "punishment" upon minority men -- mostly African Americans -- in the United States, in an obviously racist and arbitrary manner, makes the continued use of this punishment a monument to legal cruelty and evil. I do not accept that anyone should be executed in my name, or in the name of the people who adopted and live by the U.S. Constitution, as long as bias is pervasive in the "legal machinery of death."

The death penalty offends the Constitution's equal protection and due process clauses, it is cruel and unusual in practice, in what is now (much too often) "a cruel and unusual" society burdened with the legacy of slavery which is persistent, insidious, and lethal racism. It is not possible to remain silent in response to continuing death penalty decisions. All of us, all of our children, are being imprisoned and executed by courts relying on these laws. Invited to attend an execution, Christopher Hitchens writes eloquently of what any sensitive and intelligent person must feel on such a grisly occasion, given the realities of America's legal system and bloody history. It is that history that makes all tinkering efforts absurd and ineffective:

Every attempt to make this procedure more rational, more orderly, and more hygienic succeeded only in calling attention to something that I'm now firmly convinced is inescapable -- namely, that it's irrational, random, and befouled and bemerded with the residues of ancient cruelty and superstition. They can deny it's cruel, they can certainly make it less unusual, but they are still stuck with the task of running a premeditated state killing: Big Government at its worst. (When the French finally abolished the guillotine in 1981 they did so on the noble grounds that "it expresses a totalitarian relationship between the citizen and the state.")

Love, Poverty, and War: Journeys and Essays (New York: Nation Books, 2004), p. 242.

It is no answer to speak of the terrible crimes committed by offenders because societies must be a little better than heinous criminals. We legitimate violence and cruelty by imposing death on those who kill. There is no correlation, as Hitchens notes, between the death penalty and ANY reduction in murder rates.

It is no response to say that, at least, the executed criminal is "deterred." Such gallows humor on the part of America's judicial humanitarians and comedians is not very persuasive because there are numerous studies suggesting that violence and murder only breed MORE of the same, increasing the likelihood that where death is a punishment that is legally sanctioned, those who are disproportionately subjected to it will make use of the same penalty against their oppressors. In a legal system that is frequently idiotic and incompetent, with a judiciary sometimes staffed by "political whores" and unapprehended criminals, errors are bound to be made. The innocent are certain to be executed. William Styron dips his pen in satirical acid to suggest:

Until by legislative mandate all executions are carried on the television networks of the states involved (they could be sponsored by the gas and electric companies), in a dramatic fashion which will ensure the entire population -- men, women and all children over the age of five -- [will] watch the final agonies of those condemned, even the suggestion that we inflict the death penalty to deter people from crime is a farcical one.

This Quiet Dust and Other Writings (New York: Random House, 1982), p. 125.

As I write, Mumia Abu-Jamal is still facing execution for a crime to which another person has now confessed. This alone should give appellate tribunals cause to err on the side of caution so as to halt the imposition of the most irreversible and ultimate penalty. On December 17, 2006, between 5 to 10 P.M., at 125 Fifth Ave. (at Sterling Pl.) Brooklyn, NY -- thousands of people will gather to protest and appeal for all "class-war prisoners" in the U.S., asking for freedom for Mumia Abu-Jamal. I urge you to join those of us who are opposed to this execution and every other death penalty in America in this protest and struggle. We must not allow Mr. Abu-Jamal to be executed. We should work for his immediate release.

After years of efforts to "fine tune" death penalty laws in order to accommodate the demands for human dignity and justice, as well as those inviolable individual rights which he discovered in the greatest Constitution the world has ever seen, in a nation which must remain the greatest nation in the world -- not in a simplistic military way, but in a moral sense -- Republican appointee, Mr. Justice Harry Blackmun, concluded in 1994 that it could not be done. The U.S. Constitution and death penalty laws, given our evolving understanding of what the document and tradition require of us, cannot be reconciled. We must choose between them. Either legally sanctioned death or the Constitution. We cannot have both. I agree. Like Mr. Justice Blackmun, I choose the Constitution.

I no longer shall tinker with the machinery of death. For more than twenty years I have endeavored -- indeed I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated to concede that the death penalty experiment has failed.

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