Tuesday, September 04, 2018

"Equal Justice Under Law" -- Abandoned by President Donald J. Trump

For most of us, "equal justice under law," is a national promise and ideal that is supremely important. Yes, many of us feel justice as applied is not equal and this promise is hollow. But we subscribe to the ideal, we hold it up!

Historically, our national leadership affirms "equal justice under law" -- indeed it must affirm this -- as our common objective, and a guiding principle of the Executive and Judicial branches of the government -- federal and state.

I have hesitated to begin to identify the problems that President Donald Trump creates by his various statements that have revealed a disrespect for the law and the norms that the President should uphold as a matter of custom and decorum. They are simply too numerous and frequent to spend the time.

But his tweets on September 3 criticizing U.S. Attorneys (actually criticizing the U.S. Department of Justice and Attorney General Jeff Sessions)  in bringing criminal charges on behalf of the United States against two Members of Congress because this prosecution might effect the outcome of the November 2018 elections were especially shocking.

Of course the accused Members of Congress are entitled to a presumption of innocence, but they are not entitled to impunity.

The President's tweets create the impression that he believes that his political supporters ought to not be prosecuted, even if there is probable cause to charge them with felony conduct. This is different than his pardon of former Sheriff Joe Arpaio (who lost his attempt to be a Republican nominee to the U.S. Senate from Arizona). In the exercise of his pardon authority, it is his authority in Article II, section 2. But to attack the Justice Department, which is responsible for operating under the "Equal Justice Under Law" principle in every case, demonstrates his belief that his personal moral values ought to prevail in the management and administration of the Department of Justice.

The President's cronies must never be immune from prosecution, and that President Donald J. Trump does not agree demonstrates that he does not understand the key feature of his oath of office, "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." (Article II, Section 1, last clause).

This should trouble all of us.

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Prison Strike 2018 -- Stop slave wages and amend the 13th Amendment

The Intercept reported on the summer 2018 prison strike. It will be very interesting to see what attention it generates and what the outcomes will be. Among the shocking features of our incarceration policies are the very low wages paid to inmates for their labor. A year and half ago, Prison Policy compiled prison wages, state by state.

For prisoners, having the opportunity work is a good idea, but it must be compensated at the prevailing scale to be fair and meaningful.  There are many problems with the U.S. Constitution -- the electoral college system and the equal representation of each state in the U.S. Senate are two that come quickly to mind -- but one of the worst is the continued authorization of slavery as punishment for the conviction of a crime in the 13th Amendment as slavery is being outlawed in general.

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." (Ratified Dec. 18, 1865 by 27 states)

This provision of the Constitution sanctifies slavery as a status for being convicted of a crime

This provision of the Constitution authorizes "slave wages" for inmates working in the nation's correctional system. This is a provision that should be amended by Congress and the States.


The continuation of the Constitutional protection of slavery has terrible consequences. As provided by the Constitution, this status of protected slavery is not limited only to the serving of a sentence, but can be understood a lifetime second-class status that helps undermine the rehabilitation of the formerly incarcerated. It helps to maintain the reluctance to fully reintegrate those who have offended back into the economy and the community.

Today, prisoners are paid a few cents per hour for their labor, justified by this provision of the Constitution.  Work is a valued distraction from the boredom of imprisonment. Prisoners want to work. Meaningful work in prison is a valuable experience for transitioning to employment at the end of a sentence. Work in prison should be encouraged! But as long as prison labor can be equated as slavery and involuntary servitude it is tainted. Prison work, often hazardous -- working on farms, working with power tools and machinery, working in risky environments -- should be subject to OSHA. And prison employees should be subject to workplace protections against injury (worker's compensation, protection against hazardous materials, and from harassment and discrimination, etc.)

But as a matter of policy,  slave labor wages, due to the 13th Amendment, pervert the valuable experience of work for prisoners.
By failing to adequately compensate prison labor:
     * work becomes associated with exploitation and fosters resentment against employers and increases alienation about our economic system;
     * the labor undercuts wages paid to people employed in the regular labor market whose products and services compete with those of the prison employer;
     * prisoners cannot send meaningful funds home to families, helping to support children, which provides a stronger basis for family re-integration at the conclusion of a sentence (a strong family connection being an important factor in reducing the risk of recidivism);
     * prisoners cannot purchase telephone time to stay in communication with family;
     * families of prisoners have to subsidize their loved ones in prison, creating additional stresses on families that have lost a bread winner;
     * prisoners cannot save money to serve as a first and lost month rent for housing when they are released from incarceration increasing the likelihood that they will immediately become homeless and at high risk to use illegal drugs and return to criminal conduct.

Is Congress working to eliminate the protection of slavery in the 13th Amendment which begins, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States..."

No.

In the current 115th Congress, two Republicans in the House, Rep. Randy Weber (R-TX) and Rep. David Young (R-IA) have introduced H. Res. 936 to recognize June   19, as "Junteenth Independence Day," that notes that the 13th Amendment was adopted.

On January 29, 2018, Sen. Dianne Feinstein (D-CA) introduced S. 385, "National Trafficking and Modern Slavery Prevention Month" in January 2018, noting that the Trafficking Victims Protection Act of 2000 was enacted "under the authority of Congress to enforce the 13th Amendment" and "updated the post-Civil War involuntary servitude and slavery statutes." It was approved by the Senate very quickly, but on February 7, a week after the month ended. 

But there is an opportunity for Congress to help prisoners but abolishing slavery in the U.S., period, but amending the 13th Amendment.

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Thursday, January 04, 2018

End of Cole Memorandum regarding Federal-State marijuana "stand off" 1st news

Associated Press has reported that U.S. Attorney General Jeff Sessions is planning to suspend the 2013 U.S. Department of Justice Memorandum (known as the "Cole Memorandum") that has been interpreted to give the states the green light to legalize and regulate marijuana within their borders after Colorado and Washington voters adopted laws to legalize adult recreational use of marijuana and the growth and distribution of marijuana for that purpose.

Here is the new memorandum from A.G. Sessions issued on Jan. 4, 2018. It says that all the general criteria that U.S. Attorneys are supposed to use in deciding what cases to prosecute should be applied to marijuana cases.

U.S. Senator Cory Gardner (R-CO) has said that this move violates a pledge that Sessions made to him. Gardner is threatening to start blocking Senate confirmation of Department of Justice nominations in retaliation.

The 2013 Memorandum expanded on earlier memoranda from 2009 and 2011("Ogden Memorandum") that were limited to state medical marijuana programs.

Sessions, as a Federal prosecutor, was especially hostile to drug offenders, and as U.S. Senator, regularly spoke out against any kind of marijuana law reform.

Stay tuned to see what the actual details of the Session's new policy look like.

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Friday, September 29, 2017

Yom Kippur 1990 -- Defending Religious Liberty



September 29, 1990
U.S. Capitol, Washington, D.C.

Statement of Reuben A. Snake, Jr. (1937 - 1993)
Coordinator, Native American Religious Freedom Project
A Gathering Of Native American Religious Leaders To
Obtain Guarantees Of Religious Liberty


          BACKGROUND: In the spring 1990, the U.S. Supreme Court abandoned well-established free exercise of religion precedents in case involving a member of the Native American Church who worked for a drug treatment program that required staff to be "drug-free." He was fired because he used peyote in his worship. He sought unemployment compensation but Oregon denied it. His appeal went to the Supreme Court which upheld Oregon. The court ruled that the drug law is a law of general applicability, not designed to block religious practice. Almost all religious denominations joined to ask Congress to restore the old precedent. Members of Native American Church were alarmed about implications of this precedent. The Quaker lobby, Friends Committee on National Legislation had a long relationship with the Indians and the Native American Church. A meeting to plan a strategy was called for Washington. At the last minute, FCNL asked Eric Sterling, a Quaker and recently retired counsel to the U.S. House Judiciary Committee and expert on drug law, to join the meeting. He suggested a political and media strategy to educate Congress, the news media and other faiths about the Native American Church. The Native American Religious Freedom Project was created and based in Eric's office at the Criminal Justice Policy Foundation. The events were: (1) A press conference at a teepee erected just to the west of the Capitol on the site of the future National Museum of the American Indian including a representative of U.S. Senator Daniel Inouye (D-HI), Chair of the Senate Select Committee on Indian Affairs; and (2) A worship service of the Native American Church with the holy medicine, peyote. Eric made many calls to find a location where the worship could be held without a police raid. Finally he found that the National Park Service would be happy to host the worship and set aside an area in Greenbelt National Park for that purpose for Sept. 29-30. After the press event, and the speeches, including the one below, worship was held in three sacred fireplaces created by three different branches of the Native American Church of North America in Greenbelt. At the conclusion of the all night worship at dawn on September 30, a celebratory meal was shared by all participants.
 
             
            Senator Inouye, Church President Emerson Jackson, honored guests, as an American it is inspiring to stand here at the foot of the U.S. Capitol to exercise two of our basic American rights, the freedom of speech, and the right to petition the government for a redress of grievances.
            Native Americans have been associated with the liberty of the American people since the founding of the nation. In 1773, at the Boston tea party, the early protestors against British royal tyranny dressed as Mohawks because Indians, in England and in Europe, were a symbol of American liberty. Indians, and our way of life, were the very symbol of American liberty adopted by the earliest American revolutionaries. But four or five centuries before that dramatic event, even before Christopher Columbus sailed from Spain, the Five Nations of the Iroquois confederacy formed a government under a constitution called the Great Law of Peace. Consider some of the enlightened features of that government -- parliamentary-type government, separation of politics and religion, separation of civil and military government, the concept of checks and balances, veto, referendum, and so forth. Those governmental concepts were so remarkable, books were written about them in the European languages. These concepts became known to John Locke and Jean-Jacques Rousseau, European political philosophers, whose writings are cited in identifying the sources of the U.S. Constitution. The free exercise of religion was among the many features of that great Native American government, and the freedom of religion is one which many of us take for granted today.
            On September 15, 1620, English subjects sailed from Plymouth, England, to seek refuge from religious persecution. The story of the Puritan pilgrims landing at Plymouth Rock in Massachusetts to achieve religious freedom is one of the best-known stories in American history.
            It is tragic to say however, that we are now in a situation in the United States of America where we can no longer take such a fundamental right, the free exercise of religion, for granted. As venerable as the heritage of religious liberty has been in America, religious liberty is now in jeopardy for all minority religions.
            Last April, in the case of Employment Division of Oregon v. Smith [494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876, 1990 U.S. Lexis 2021 (1990)], a case involving Native American religious liberty, the U.S. Supreme court threw out its long standing precedents and declared that no longer does the government have to show that laws which burden and restrict religious liberty must be justified by a compelling government interest. Even very large religious organizations issued protests and sought a rehearing in the court. The Baptists, the Methodists, Jewish groups, dozens of religious groups, and over 50 of America's most distinguished constitutional law professors sought a rehearing of the court's decision.
            But consider the implications of this case from our perspective. The U.S. Supreme court reversed a long line of settled cases in order to rule that the use of the sacrament of Native American worship, the holy medicine, peyote, is not protected under the First Amendment of the constitution. They said, in our case, our religious exercises, our form of worship, the use of our holy sacrament, is not protected by the constitution. The court said that Native Americans, who have enjoyed religious liberty on this land since before the pilgrims fled here, are no longer entitled to religious liberty. This trampling of Native American religious liberty is intolerable. Our people have been using the holy medicine, peyote, for thousands of years, thousands of years.
            For the last twenty years, the American people have been suffering an epidemic of abuse of refined chemical drugs like cocaine, heroin, amphetamines, PCP, and so forth. American cities are crawling with violence and crime. This is a terrible tragedy, and this kind of drug abuse is also a problem for some Indian youth. But there is no peyote drug abuse problem. I defy the justices of the Supreme Court to find newspaper reports of drive-by shootings in connection with the holy medicine. I challenge anyone concerned about the problem of drug abuse to find examples of dope peddlers selling the holy medicine in America's school yards and play grounds. The idea is preposterous.
            We don't have a peyote abuse problem in this nation. Yet the widespread fear, bordering on panic, about the tragedy of drug abuse has clouded the minds of the justices. In the name of the war on drugs, our use of our holy medicine is restricted. In the name of the war on drugs, our guarantee of free exercise of religion has been violated. In the name of the war on drugs, the religious freedom of every American has been placed in jeopardy.
            The consequences are outrageous. For decades Native Americans have endured the harassment and persecution of law enforcement authorities ignorant of, or indifferent to, our ancient ways of worship. The law reports are filled with tragic cases of our men and women dragged from worship, or from their homes, to jail cells and to courtrooms, forced to defend themselves, to justify themselves to the ignorant and the callous. But in those degrading circumstances, we could always point, confidently, to the First Amendment's guarantees of free exercise of religion, and know that ultimately we would prevail. Now, unbelievably, we are no longer assured that we will prevail.
            This has been intolerable to us, this is intolerable to us, and it is intolerable to every American who treasures their right to worship God without government interference.
            In the Native American Church every day is a holy day, but today is special. In the Hebrew calendar, today is Yom Kippur, the Day of Atonement, the most solemn day of Jewish worship. Many Jewish friends of Native Americans invited to join us this morning explained that they could not worship with us here, for they would be in their own temples in prayer.
            For many of the 5741 years of the Hebrew calendar, the Jewish people have suffered oppression on account of their religion. Today, 199 years after the American Bill of Eights was adopted, we are thankful that the Jewish people feel free to worship without fearing government harassment. But ladies and gentlemen, today the 250,000 members of the Native American Church are not free to worship God without fear of government harassment.
            Church President Emerson Jackson has declared tomorrow a day of prayer for peace. Today, hundreds of our people are preparing for a night-long Native American Church service and prayer for peace. But many of our elders, who have traveled thousands of miles to be here to worship in our nation's capital, who have experienced the indignities of religious persecution, expressed to the organizers of this worship service a great fear -- will we be arrested? Will we be arrested? We have had to call law enforcement authorities -- attorneys general, prosecutors, assistant state's attorneys, narcotics units -- around the region to assure ourselves that our worship will proceed undisturbed by the hideous specter of a police raid.
            I ask my brothers and sisters who are Christians, my brothers and sisters who are Moslem, my brothers and sisters who are Hindus, my brothers and sisters who are Buddhists, my brothers and sisters who are Jewish, do any of you worry that your worship services will be raided by the police? Do any of you feel it necessary to call the police in order to set up a worship service? Do any of you have to explain to law enforcement officers that you have a right to worship your God in your own manner?
            I ask my brothers and sisters who are Christians, do you need permission from your state alcoholic beverage control commission to give sacramental wine to communicants under the age of 21? Do your priests need licenses from the government to perform a mass? Of course not, but under the Smith decision, that shocking possibility may yet come to pass.
            I ask my brothers and sisters, when they tell their children about their religious rites, do they have to warn their little ones about the police? Do they have to explain that they should not be ashamed because of the special police "interest" in their worship? I ask the American people, does this sound like the religious life we expect to live in the United States of America? Well my brothers and sisters, this unbelievable condition burdens our worship. This relic of prejudice burdens our worship. This government involvement in our religion burdens our worship, and it is intolerable.
            Today, at the highest point in Washington, overlooking our little press conference, the National Cathedral is being dedicated. Today the last stone is being placed in that beautiful monument to the central importance of God and prayer in American life. It is profoundly ironic that just as that glorious cathedral is being completed and dedicated in our nation's capital, the U.S. Supreme court has jeopardized the status of every minority religion, and it has done so in a case involving Native American Church members using the holy sacrament of our church.
            We are here today with one simple message -- we demand that our use of our sacrament, the holy medicine peyote, be fully protected by law without qualification. We ask no more, we expect no more, and we are entitled to nothing less!
            Why must we stand here and defend our religion? Why must we tell you that our church is a good church? Why must we tell you that we do not tolerate drug abusers or alcoholics in our church? We are reduced to this posture because of laws passed and enforced in an atmosphere of almost total ignorance about Native Americans.
            Perhaps we should not be surprised. Like most Americans we like to go about our business quietly and without drawing attention to ourselves. One of the central teachings of our church is humility. We have never held a press conference before. We have never drawn attention to ourselves before. We are uncomfortable this morning, but to protect ourselves, we have a duty. We are here today to tell the American people that our worship is sacred, it is legitimate, it is profound, it is good, it is wonderful in the eyes of God, it is wonderful for our people, and we must, we must pray the way God has taught us.
            Americans, you have taken much from us. You have benefited from us in many ways. You have left us little land, you have taken away our traditional livelihoods. Do not allow the government to take our religious freedom away. We urge you to join us in supporting the "Religious Freedom Restoration Act of 1990," H.R. 5377. But this is only a first step. The bill does not go far enough. It does not specifically protect our worship, the one that the Supreme Court chose to disregard and deny protection. We urge that the bill be amended to specifically protect Native American religious freedom. That is not too much to ask.
            Soon we will be returning to our homes across America and to our children and grandchildren. We will say we engaged in the political process, we spoke to the American people and to the national news media. We went to Washington, and we told our story. Can we tell our children, "we succeeded, you are now safe"? Can we tell our children, "we have brought back for you the security, the safety, the certainty that you, our children, and your children can worship God as we have been taught"? It is our prayer that we can!

* * * * *

            Mr. Snake was assisted in the preparation of these remarks by Eric E. Sterling, Executive Director of the Criminal Justice Policy Foundation. The Native American Religious Freedom Project was housed and supported by the Criminal Justice Policy Foundation in Washington, DC. Please contact Eric Sterling if you would like more information about the occasion on which these remarks were made. Eric Sterling was introduced to Mr. Snake by Jay C. Fikes, then with the Friends Committee on National Legislation.

            The Religious Freedom Restoration Act, reversing Employment Division ofOregon v. Smith (494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876, 1990 U.S. Lexis 2021 (1990)), passed Congress overwhelmingly and was signed on November 16, 1993 by President Clinton (P.L. 103-141). It had no provision specifically addressing the religious use of peyote. The Act prohibited any unit ofgovernment from substantially burdening a person's exercise of religion unlessthe government demonstrates that the application of the burden to the person isin the furtherance of a compelling governmental interest and is the leastrestrictive means of furthering that governmental interest. (The law can be found at 107 Statutes at Large 1488. It was H.R. 1308, 103rd Cong., House Report 103-88, and Senate Report 103-111). On June 25, 1997, the U.S. Supreme court held the Religious Freedom Restoration Act unconstitutional as applied to the states. City of Boerne, Texas v. P.F. Flores,Archbishop of San Antonio (521 U.S. 507, 117 S. Ct. 2157, 138 L. Ed. 2d 624, 1997 U.S. Lexis 4035, (1997).

            On October 6, 1994, President Clinton signed Public Law 103-344, the "American Indian Religious Freedom Act Amendments of 1994," to protect the traditional use of peyote by Indians for religious purposes throughout the United States. (108 Statutes at Large 3125). The billpassed the U.S. House of Representatives on August 8, 1994, and passed the U.S.Senate on September 26, 1995. (H.R. 4230, 103rd Cong., House Report 103-675). The Native American Rights Fund (NARF) played a major role in enacting this legislation. Robert M. Peregoy, Esq. (1947-2015) was senior counsel for NARF, 1514 P Street, NW, Washington, DC 20005, tel. 202-785-4166; and Walter Echo Hawk, Esq., then at NARF's Boulder, CO office, 303-447-8760

            A book about the religious use of peyote and the political struggle that this speech was a part of was published in 1996 by Prof. Huston Smith (1919-2016) with the collaboration of Mr. Snake, One Nation Under God, The Triumph of theNative American Church (1996).

            The autobiography of Reuben Snake was published in 1996, Reuben Snake, Your Humble Serpent, Indian Visionary and Activist, as told to Jay C. Fikes. Both books were published by Clear Light Publishers, 823 Don Diego, Santa Fe, NM 87505 (800-253-2747).

            Two documentary movies were made in the course of the lobbying for this law.  “The Peyote Road" and "YourHumble Serpent” by film maker Gary Rhine, (1951-2006), Kifaru Productions.

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Monday, September 25, 2017

Nicholas Kristoff (New York Times) on Portugal's effective and humane drug policy

Published on September 24, 2017, "How to Win A War on Drugs," the lead story in the Sunday Review section of The New York Times.

The heart of this report is how Portugal's decriminalization drug policy, adopted in 2001, focusing on public health outreach and not using criminal justice resources against drug users, has dramatically reduced deaths, HIV, and the number of heroin users.

Concludes Kristoff, "The lesson that Portugal offers the world is that while we can't eradicate heroin, it's possible to save the lives of drug users -- if we're willing to treat them not as criminals but as sick, suffering human beings who need helping hands, not handcuffs."

Exactly, treat drug users as human beings, and if when they are suffering, help them.

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