Kevin De Liban

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Down By Law, Volume 2

Assassination Day: This is part two of our Down By Law series where Kevin De Liban, the Legal Lyricist, explains relevant tenets of law, government, and justice in accessible ways.

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Disclaimer: This is all written in my capacity as a private citizen, and the view stated here do not reflect those of my employer. 

 

"Homicide is illegal and death is the penalty, 

What justifies the homicide when he dies?"

--Masta Killa, "Da Mystery of Chessboxing" 

 

One aspect of the rule of law is what happens when laws are broken. There's a distinction between criminal cases, where the government is the only party than can enforce the laws, and civil cases, where private citizens can enforce the laws by suing (in some instances, the government can enforce laws in civil cases, too). The penalties are different. Criminal cases carry the threat of incarceration, execution, fines, and continued government oversight through parole or probation.  Meanwhile, the penalties for civil cases mostly involve damages, basically meaning money compensation for losses suffered, or other financial penalties. Sometimes, in civil cases, the court can also order someone to do or stop doing something specific. State or federal legislatures, within the powers granted to each, get to define what kinds of actions will be crimes and what the possible sentences are. Most states have a death penalty that can be applied only to the crime of murder and, even there, not in every kind of murder.

After not executing anyone since 2005, Arkansas recently scheduled 8 executions to happen over a span of 11 days. The given reason is that the state acquired the three drugs required for the lethal injection cocktail and that one of the three drugs is set to expire at the end of April. Once the drug expires, there'd be even stronger bases for legal challenges to the executions. The state's position is that it's better to kill them quickly now and en masse rather than risk not being able to kill them at all. Lawyers for the defendants have initiated a slew of legal challenges, the latest of which was successful in halting the executions

The death penalty's pros and cons are more nuanced than I can get into here in more than a snapshot sense. The few studies suggesting that the death penalty deters murder appear unreliable and are opposed by many other studies showing no deterrent effect. Without clear evidence of deterrence, the debate then centers on both moral considerations and pragmatic concerns. Often, people supporting the death penalty phrase their support in terms of victim's rights and closure for the victim's family. In that moral universe, the killer's death will compensate for the taking of the victim's life or, at least, eradicate one particular and identifiable source of evil from society. Opponents of the death penalty emphasize that the inherent dignity of human life--even that of a convicted murderer--forbids society from killing. There have also been at least 20 exonerations of death row inmates by DNA evidence, highlighting the possibility that society will be killing the wrong person. The death penalty is disproportionately applied where the victim is white, suggesting that victims of color are somehow less worthy of society's vengeance, and disproportionately applied to black defendants, feeding into racialized narratives about who deserves to die (or whom the government should be allowed to kill).  Practical considerations abound, too, with death penalty litigation more costly than murder cases where the death penalty is not an option and more costly than lifetime incarceration (also, here). There are also concerns that prosecutors charge defendants with the death penalty as  leverage to get defendants to plead to a lesser charge that doesn't carry the death penalty.  

Whatever the debate about the merits of death penalty, the state of Arkansas has chosen to adopt the death penalty and has chosen to apply it to these 8 men. From all accounts, the Arkansas legislature adopted the death penalty in a lawful manner, these 8 men were tried, and juries decided to impose the death penalty. So, why shouldn't Arkansas be allowed to kill them? Wouldn't stopping the executions in fact undermine the rule of law, as manifested through the legislative decision to adopt the death penalty, the voters who elected the legislators, and the jurors who sentenced the defendants? Indeed, the federal court judge who has effectively halted the executions emphasized these points in the first three pages of her ruling. 

So, what's the challenge about? This is the where the rule of law gets interesting. The recent legal challenges in Arkansas are not based on the merits of the death penalty or on whether the sentences were lawfully imposed, but rather on whether Arkansas can carry out the executions in a way that would not cause cruel and unusual punishment, which the Eighth Amendment of the U.S. Constitution prohibits (again, see the first few pages of the judge's ruling). In other words, here, at least, there's no question that the state can kill as long as it kills humanely. The judge simply ruled that, based on the preliminary evidence available, the drug cocktail that Arkansas plans to use is too likely to cause the defendant's severe pain to allow the state to move forward right now.

Humane killing? However oxymoronic the term, is that all the law requires? Yup. Victory here--the outcome of thousands of hours of work--just means that that the state will have to kill according to some other schedule or in some other way. So, what's the big deal? 

The case is important for the lives at issue, of course. Assuming the judge's ruling stands, Arkansas's supply of the drug cocktail will expire, meaning that it will have to secure more in order to carry out the executions. However, drug companies don't liketo have their products used to execute, and they don't sell them freely to states or prisons. So, if the state is intent on executing these men, it may have to adopt the firing squad, which harkens to older, more barbaric days and is a proposal likely to be accompanied by a highly visible public debate. Thus, the present case can re-center the moral issues in its effect, if not in its immediate substance. 

But, for all the attention on this issue, here, the rule of law is providing for killing of citizens while at the same time providing a floor below which society is not allowed to sink in doing so. We can kill killers, but we can't torture them to death. Stated like that, the whole notion feels absurd. Still, the prohibition on cruel and unusual punishment for forfeited lives isn't meaningless. 

Governments, whether for military or scientific ends (sometimes, both at the same time) are all too capable of devising awful techniques for inflicting pain or, at least, wanting to study the effects of pain.  But, there's a very real question of who is a legitimate target. We know of U.S. officials using water-boarding on people it termed "terrorists." Various Latin American dictatorships,with some support by the U.S., targeted "leftists," a term that included professors, university students, unions, and rural peasant organizations, and inflicted all sorts of torture to try to obtain information to root out "subversive" elements of society (of course, the U.S. government was particularly hostile to domestic parts of the left before and during the Cold War that resulted in some state-sponsored violence and witch hunts, but that didn't generally amount to a regimented system of torture). The long-term effects of untreated syphilis were studied by a federal public health team using poor, black, rural sharecroppers in Alabama (the Tuskegee experiment), who were not even presented with the option of receiving treatment once penicillin was shown to be effective. There are countless other examples from other countries, too. Somehow, all of that pain is acceptable because the people exposed to it do not deserve any better. 

So, the affirmation that an overly painful death or torture is inappropriate for those lives with presumably the least value--death row inmates--maintains some public acknowledgment of the dignity of all life. In practice, however, so much that violates this mandate goes unnoticed or unpunished, whether police brutality, neglect of inmates' need for medical treatment, excessive use of solitary confinement, or overcrowding in prisons and immigrant detention centers. There are several reasons. Monitoring the criminal justice system is not a high enough priority for lawmakers such that they fund independent oversight. It can be hard for prisoners to effectively bring lawsuits or get access to the relatively few legal groups who advocate on behalf of prisoners. Prison guards and police officers have closed cultures that discourage reporting abuses or cooperating openly with investigations. And, in light of indiscriminate vilification of prisoners (i.e. a non-violent drug offender may be seen as just as much of a "criminal" as a murderer or rapist), it's unsurprising that society doesn't see them as worthy of safeguards or belief.  

The divergence between the law and reality underscores that laws are often intentionally left to be aspirational and incremental, a testament not to where society is, but where it ought to be and might slowly go. And, even in this aspirational context, there is presently no legal tenet that aspires to totally stop executing prisoners. Unexpectedly, Arkansas's ambition for death may be an accidental catalyst for change. 

Down By Law, Volume 1

Disclaimer: This is all written in my capacity as a private citizen, and the view stated here do not reflect those of my employer. 

These are crazy times. The world is experiencing resurgent waves of nationalism and xenophobia, feeding into the imagined idea of a clash of civilizations that can be avoided with some good sense. Despots and war are creating millions of refugees and heightening international tensions. Oceans and the atmosphere are warming. Systemic racism abounds. Social safety nets are threatened.  

But, there's lots of good in the world, and there are lots of good people trying to figure out how to push us all towards justice. This is part one of our series where Kevin De Liban, the Legal Lyricist, introduces in accessible ways some supremely relevant tenets of law, government, and justice. It all takes place through a hypothetical prism of government action against weak, wack, corny, slaw, bootsie, and/or janky rappers, a topic that might at first appear frivolous, but, as will be revealed, reveals the heart of sacrosanct ideas of representative democracy. 

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"We're a nation of laws, not men."  We've heard that line repeatedly, especially lately. It comes in other forms, too, most notably in the idea that we are governed by the "rule of law." But, leaving aside for the moment of whether that's true (as Jay-Z once said, "I just sit on my money till I'm above the law"), what is actually meant by "rule of law"? It can be especially confusing when "laws" have been around beyond written history, with evidence of written ones dating back over 4,000 years. And, certainly, the billions of humans who've lived in that time have been subject to laws.

Basically, "rule of law" is supposed to mean rational exercise of government power. It means that we don't let King Joffrey's whimsical perversions--or those of the actual, modern rulers and the bureaucratic state--become official government action. And, in the event that the government can't be stopped before it does something inconsistent or irrational, the "rule of law" is supposed to give us a way of fixing things. 

Rulers--whether kings, emperors, pharaohs, khans, or caesars--used to be able to determine the fate of anyone or anything with very little check on their power other than domestic or foreign rivalry. You might not piss off key supporters unless you want to incite an uprising or have a song called Assassination Day written about you. And, you can conquer as widely as you want until you run into someone that won't let you go further. 

At the same, expanding kingdoms brought greater territory to administer, forcing rulers to give ever-increasing authority to act to people further than a day's horse-ride away. Sometimes, they were appointed. Sometimes, they were hereditary nobility with titles like "duke" and "count" and "baron" and so on. Whatever the case, they had a lot of power over the day-to-day lives of the people in their territory. 

Because the kings might levy heavy taxes or conscript these elites into military service, they thought kings had too much power and attempted to resist with either the threat of or actual war. They sought limits on what the kings could do. In European history, people often cite the the Magna Carta as the foundational document restraining the king's power. After some time, parliaments, populated with members of the elite, develop in some places to provide further checks on the king's rule-making power. Other classes emerge, like the merchants, and gain enough money or power to extract further concessions. And, and least in Europe, the Catholic and, later, Protestant churches had interests that sometimes diverged from those of the king and sought compromises in return for support.

There's a lot more to the story, especially the idea of extending protections first granted to elites to other classes of people. But, at heart, the "rule of law" is an attempt to restrain government power so that it is used in a rational--not arbitrary--way. What rational means can be up for debate, but it involves justification and consistency. There should be defensible reasons for taking particular government action based on some sense of the public interest. And, ideally, similar factual situations should produce similar outcomes. 

The principle, at least in theory, permeates every level of American government, underpinning ideas of multiple branches of government, checks and balances, separation of powers, the differences between state and federal governments, and other ideas from introductory civics and political science classes that are easy to forget.

Let's move to our example of the wack rapper. In the old days, the only definition of "wack" that mattered was the king's. Wack could mean something that was critical of the king, that didn't match the king's flavor, that wasn't smooth enough to make illegitimate children to, or even something that the king thought gave him indigestion when eating. Whatever the criteria, once the king decided someone was wack and wanted to punish him, the king could cut his tongue out, feed him to even wacker rappers (death by "biters"), or force him to run laps around the English Channel. There were no limits to his power. Now, though, no president can just haphazardly decide to cut out a wack rapper's tongue for spitting weak lyrics. In fact, the president can't inflict any punishment whatsoever. That whole function has been removed from his office. The president's prosecutor--the Attorney General--gets to charge and prosecute certain federal crimes, but, since Congress hasn't passed a law against wackness, there's no crime to be charged with. So, that also means that police can't arrest people for being wack, and judges can't sentence them. 

Right now, thanks to the rule of law, weak rappers are free to fling their vocal vibrations off our ear drums whenever we get close to them. But, there are a whole lot of unanswered questions. What if Congress tried to crack down on wackness? How would Congress define it? What if the President didn't like how Congress regulates it and decides to do something on his own? What does the Constitution have to say about it all? What roles can rappers and their fans play in the whole process? And, if wackness ends up being regulated according to the "rule of law," who wins and loses? 

My Only Vendetta, Volume 1

My Only Vendetta (Change for Better), Volume 1

Disclaimer: The views expressed here are personal, have been written on personal time, and do not represent those of my employer. 

"I never brag how real I keep it, cuz it's the best secret."--Nas

In the do-gooding world, or at least the part of it I inhabit, there's a taboo we need to break. We don't speak enough of ourselves or the good we do. We've been taught that doing so is boastful, deprives the good act of meaning, and is otherwise inappropriate. 

The taboo is rooted in sound principles. After all, social workers, anti-poverty lawyers, public defenders, teachers, organizers, advocates, therapists, or community health center nurses or doctors should be driven by the the importance of the work, not by a desire for glory and renown. Moreover, the weight of any public discourse should be focused on the people we serve, their lives, challenges, and dignity. This is particularly salient because the people we serve and work with are often reduced to tropes, forgotten, or remembered with little concern. So, the rare times when non-do-gooders are listening, the thinking goes, we have to center our clients. Finally, we want to avoid propagating oppression in the form of savior narratives, which often feature white men (like me) or other people with relative privilege helping people in poverty or people of color or, best, people of color in poverty to straighten out bad life choices or to accomplish something they were too weak to do on their own. Such narratives largely ignore historical context and systemic forces that have led to the present injustice, diminish the efforts and achievements of people being served, and reduce the people being served to mere objects of the do-gooder's ambition or magnanimity. 

However sound these guiding principles, the taboo is based on the unimaginative assumption that it's an either/or world. But, we can speak meaningfully about clients and about ourselves. Although difficult, we can create enough space and adopt enough nuance to do so without doing our clients any disservice and without devolving into sheer vanity and ego. Indeed, it's imperative we do so to proclaim the unique combination of messages that only we can. 

Our country doesn't prize justice as it ought. In fact, it's soaked in the  cynicism of a culture that has wrongly fetishized the virtues of business at the expense of justice. Poor people are called lazy. In professional settings, racism, gender discrimination, and the like are euphemized as matters of bad "workplace fit" allegedly hindering morale and productivity. Do-gooders are ridiculed as being not good enough to make it in the private sector. Schools and non-profits are targeted for cuts as being inefficient or ineffective, in need of being run as a business. Activists get chided for being at a march while so-called "responsible" people are at a job. Material prosperity is seen largely as a result of virtue and work ethic, regardless of the advantages one started with. And, most perniciously, relief for the world's suffering is seen as the province of charity, corporate philanthropy, and works of religious mercy, all poor substitutes for justice. 

We--the do-gooders--are the only regular witnesses to the truths of injustice apart from the people experiencing it or perpetrating it. This lends us knowledge and credibility to testify  in a way that may be more persuasive to the wider world than our clients, who are unfortunately and wrongly discounted as manipulative, self-interested, overly sensitive, or unable to get over past injustice. Directly, we can make the case that a particular person or group is being disadvantaged, denied a needed societal benefit (education, health care benefits, investigation into crime they experience, etc.), targeted for state violence, or exploited. 

We--the do-gooders--demonstrate the constraints of charity. For every one legal aid attorney in Arkansas, there are 18,000 people who meet the financial eligibility standards, many of them with legal issues that the legal aid organizations simply don't have the capacity to help with. Mental health therapists in community health centers frequently turn over due to high caseloads. Public defense agencies have had to stop accepting new cases because doing otherwise would cause them to commit malpractice. Teachers face overcrowded classrooms and pay money out of pocket from paltry salaries for supplies. Homeless shelters often must turn people away because of lack of beds. In all of these settings, the unimaginable need simply cannot be met by foundation grants (if your organization can get them), individual or corporate donations, or volunteers of good will, however numerous. We must let the world know the true extent of the problem. 

We--the do-gooders--reveal the limits of the free market and offer an oblique critique of it. The reason we all exist is because the free market fails to provide affordable legal services, physical and mental health care, social services, and education. Highlighting these market failures can undermine the blind faith in free market principles that has led to rising inequality, devastating public disinvestment, and diminished unionization or other methods for preserving worker interests. So doing, we can also add a healthy dose of of skepticism to the rising wave of tech-infused social entrepreneurship, which proffers imaginary tales that intractable policy problems can be solved with the ingenuity of individual brilliant, market-driven, tech-based thinkers expending their life force to achieve beyond mortal constraints. Certainly, we need imagination, drive, and creativity to make progress, but that must be done in collaboration with the communities being served and the do-gooders who serve them. And, it must acknowledge realistic limitations to market-driven solutions. Simply put, there might not be a better way to educate kids than to have a well-supported teacher with a manageable number of kids and access to needed supplies and continued training. In some cases, we don't need to re-invent the wheel. We just need to actually produce it. 

The persistence of poverty and injustice is not a reflection of failed do-gooding. We were never truly meant (i.e. we have never been funded enough) to end such systemic problems. Rather, we exist to ameliorate the worst effects of poverty and injustice, treating the most emergent situations, giving some minimal veneer of civilized caring to what have been harsh experiences for countless individuals in or near poverty, people in rural areas whose economies have changed faster than anyone can adapt to, various racial and ethnic groups, women, veterans, people with disabilities, and people with non-heterosexual sexual orientations and identities.

The fact that we cannot end injustice with current resources demands that we speak out to center these issues with our friends and family and, ultimately, in the wider public consciousness. In so doing, we become a testament to the belief in change and the antidote to resigned acceptance of an unjust present. Our sacrifices--lower salaries, high stress, lack of support, long hours--consecrate our commitment. We are the people in whom others find hope for a better world because, at our best, we demonstrate that there are other logics to live by apart from those of traditional success, material comforts, big money, and social prestige. With our extraordinary imaginations, we see a way to a better world for our clients amid so many obstacles. With dedication and work, we help birth this new world, even if just in incremental ways. Ours is a power that can inspire those who know the present world isn't quite right but haven't yet mustered the motivation, compassion, or commitment to change it. 

Our client are often our heroes. But, so are the agents of change, whether leaders of social movements, lawyers in famous trials, or other folks from our own communities who embody less renowned greatness. Somehow, we learned about all of them. Now, it's time to make sure others know of us.