Thursday, March 17, 2016

1, 2, 3, 4, FIFTH

Amendment V:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or an indictment of a Grand Jury, except in cases arising on the land or naval force, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.
And the award for skillful use of the semicolon goes to Amendment V!  Everybody give her a big hand!  Seriously, given the gravity of the rights presented above, it really probably deserves more than one sentence, especially given the fact that at least a few of these things can and are probably open to rather wide interpretations.  "Capital or otherwise infamous crime," but not all crime, because that would be ridiculous, but where do we draw that line?  What makes us so sure that Grand Juries are some sort of safeguard nowadays, when mostly they just rubber stamp the recommendations of the prosecutor?  Does this Amendment V really protect us in practice?
This is where the rubber hits the road in our world today.  The television series Law and Order and its spinoffs have been on TV for decades near the top of the ratings heap in part because the interpretation and practice of Amendments IV and V, produces a stunning array of dramatic possibilities.
And here, as in so many other places, we need to acknowledge the fundamental wisdom of these principles, in that they can be applied as well as they are in a world that would have been absolutely unimaginable to the authors.  They have that in common with Biblical law.  But it is also necessary to acknowledge the very different worlds of the late 18th century and the early 21st century.
First of all, the majority of crimes that our legal system handles are not the "capital or otherwise infamous" type.  Traffic violations, drug offenses (possession and small time distribution), parole violations, DUI cases, debt default, I could go on, but the point is that the massive machinery of our legal system has and does function with these guidelines in place.  It has adapted and changed and will continue to do so.
For instance, in the early days prisons were few and far between. Jails were temporary modes of punishment for people with bad debts or who got a little drunk and disorderly.  Long term "storage" of criminals was rendered unnecessary by the gallows and the hangman.  The bar for capital punishment was lower than it is now.  Over the years we have raised that bar, for the better in my opinion, to a place where we can now honestly and truly consider whether depriving an individual of life is ever justified.  The arc of justice is bending towards a place where the savagery of the death penalty is no more.
In recent years voices have begun to raise around the issue of incarceration, or rather the inordinate level of incarceration we have here in these United States.  This gets into some rather muddy water though, because society relies on the rule of law and the ability to enforce those laws.  As much as I would advocate for restorative justice, I am not so naive as to ever believe that we can completely do away with retributive justice.  The problem with the system, as it now stands, is that we often deprive the poor of their life and their liberty, where we mostly just hit the wealthy in their wallets.  White collar crime is usually lightly punished while the crimes most often committed by poor people result in lengthy incarceration, which often and consequently perpetuates a cycle of crime and punishment that is very hard to escape.  A few years back Dave Chappelle did a sketch where he put the shoe on the other foot, he humorously illustrated a crack dealer getting the treatment that white collar criminals get.
Now that is funny, but there is a real human tragedy behind this reality.  As Bob Dylan's Lonesome Death of Hattie Caroll points out, justice is not always blind.  The due process of law is not yet a level playing field, and so we still have work to do.  But "due process" and ideas of justice and the seriousness of depriving our citizens of life, liberty and property are still things that are worth holding on to tightly.  True justice is a lofty goal indeed, and an ever shifting one at that.  As much as I hate to admit it, this is probably why we need lawyers (just kidding lawyer friends, I love you folks).

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