Crime and Punishment?
https://www.nytimes.com/2024/09/26/opin ... liams.html
"There are individual court cases that are perfect symbols of larger injustices, and earlier this month a Black woman named Erma Wilson lost a Court of Appeals decision that highlighted decades of judicial distortion of American civil rights law.
In 2001, a Texas jury convicted Wilson of cocaine possession. It was a nonviolent drug offense, and she was sentenced to eight years of community supervision. She appealed her conviction, but she lost. She never served jail time, but her conviction still had profound consequences on her life. Wilson was never able to achieve her dream of becoming a nurse.
Then, 20 years after her trial, she learned that she had been subject to a monstrous injustice. To quote a Fifth Circuit panel that reviewed her case, something happened at her trial that was “utterly bonkers.” A judge in the case called it a “DEFCON 1 legal scandal.” A prosecutor in the case, Weldon “Ralph” Petty Jr, was also working as a clerk for the judge during her trial — and hundreds of others.
As Jessica Priest reported in USA Today in 2021, Petty “performed legal work for at least nine judges involving the convictions of at least 355 defendants whom he prosecuted.” The defendants’ sentences in those cases “range from probation to the death penalty.”
Law clerks perform vital roles for judges. They frequently help both to research cases and draft legal opinions. In a very real sense, Wilson’s prosecutor functioned as both prosecutor and as part of the judge’s team, helping the judge decide the case that he tried. While moonlighting for local judges, he sometimes even “helped write the judges’ orders on his own cases.”
The violation of Wilson’s rights was so egregious that no one believes she received a fair trial. The prosecutor lost his law license. The truth is that it’s hard to imagine a more obvious violation of her rights.
Fortunately for Wilson, there is a federal statute that plainly applies to her situation. Under 42 USC Section 1983, “every person” operating under color of law who “subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
In plain English, this means that government officials who violate your rights are liable for damages. There are very limited exceptions to this rule, but none of them apply to Wilson’s case.
Petty violated Wilson’s rights. He destroyed her career dreams. She lost financial opportunities because of his brazen misconduct. So this is open and shut — she wins, and he loses, right?
Wrong. She lost. After an en banc hearing (when all the judges on the court hear the case), the court ruled against Wilson. Twelve judges ruled against her, and six dissented.
The reason was simple. The court held that she can’t receive damages for the constitutional violation until her conviction “has been set aside, expunged, or otherwise favorably terminated.” That requirement isn’t in the statute. It’s a judge-made rule that places a roadblock on the path to justice.
The outcome is absurd, but it’s not entirely the Fifth Circuit’s fault. The real fault lies with the Supreme Court, whose long decades of jurisprudence have gutted Section 1983 to the point where it no longer means what it clearly says. Rather than granting citizens a right to compensation when state officials violate their rights, it’s astonishingly difficult to hold public officials accountable for constitutional violations, and this lack of accountability perpetuates injustice and undermines confidence in American criminal justice.
The history of Section 1983 goes all the way back to Reconstruction and the presidency of Ulysses S. Grant. By 1871, the white supremacists of the Confederacy were already reasserting their authority over the Black citizens of the South. Less than a decade after the Emancipation Proclamation and only three years after the ratification of the 14th Amendment, the darkness of racial oppression had descended again in parts of the South.
Congress acted. To help enforce the provisions of the 14th Amendment, which grants equal protection of the laws to every person within the jurisdiction of the United States, Congress passed the Ku Klux Klan Act of 1871, which, among other things, granted citizens the right to sue public officials when those officials violated their civil rights.
The combination of the 14th Amendment and the Klan Act should have ended Jim Crow before it began. The right to bring suit and impose damages on public officials should have guaranteed voting rights. It should have protected Black citizens from police violence. It would have blocked segregation.
But it was a dead letter almost immediately after it was passed. After the election of 1876, Union troops pulled out of the South, federal protection of civil rights faltered and courts abdicated their constitutional role. As has happened so often in American history, the soaring rhetoric of the Constitution and federal law faltered in the face of American bigotry and racism.
It took 90 years to even partially revive the Klan Act. In a 1961 case called Monroe v. Pape, the Supreme Court held that six Black children and their parents could sue 13 Chicago police officers after the officers broke into the plaintiffs’ house, “routed them from bed, made them stand naked in the living room and ransacked every room.” They did this “without any warrant for search or arrest.”
The court opened the door for lawsuits, but only a crack. In a series of cases, the court trimmed and limited the reach of Section 1983. It would take a law review article to truly explain the barriers to obtaining damages for violations of the Constitution, but here are a few.
Prosecutors and judges both enjoy a broad degree of absolute immunity from civil suits for damages, in spite of the fact that one of the reasons the Klan Act was passed in the first place was that “state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights,” as Justice Potter Stewart wrote in a 1972 ruling.
Other public officials enjoy qualified immunity, a doctrine that prohibits a plaintiff from collecting damages for genuine violations of constitutional rights unless those rights are “clearly established” to a startling degree of specificity. A plaintiff generally has to point to a nearly identical case, with nearly identical facts, decided by a court of controlling jurisdiction, before he or she can recover.
In Wilson’s case, the judge-made doctrine that blocked her from recovering damages was somewhat different — the court applied Supreme Court cases holding that an incarcerated defendant has to have their conviction “set aside, expunged, or otherwise favorably terminated” before suing for damages related to a wrongful conviction.
The problem, however, is that Wilson had never been imprisoned. No matter, said the Fifth Circuit majority, she still had to pursue relief from her long-ago conviction to bring suit. That requirement, however, is not found anywhere in Section 1983. It places an unnecessary and ultimately nonsensical barrier to justice.
To quote Judge Don Willett, the author of the dissent in the case, the “lofty words” of Section 1983, “are just that — pretty parchment promises — if the judicial fine print of made-up caveats, exceptions, and qualifiers ensures that abuses (and abusers) get a pass, even for the most egregious, conscience-shocking deprivations.”
Less than a quarter of Americans trust the government to do the right thing “always” or “most of the time.” The collapse of trust in American government has been staggering, plunging from nearly 75 percent in the postwar glow of the Eisenhower administration to the pathetic lows of the present day.
The reasons for this collapse are complex. Some of the decline is because of the information age itself. The combination of modern information technology and a vigorous free press means that we simply know more about our public officials, and we often don’t like what we see.
But why don’t we like what we see? One reason is that generations of overbroad immunity have created a culture of governmental impunity. Public officials are imperfect human beings, and imperfect human beings will often do exactly what they can get away with. They will often push their conduct to the absolute limit, and that’s exactly what public officials in America have done since the founding and will continue to do until the law makes them stop.
Not every public official is prone to commit constitutional violations. Our governments at all levels are staffed by countless public-spirited, public-minded officials who don’t need the law to keep them honest. Their own consciences do that vital work.
But one thing we know: When it comes to guaranteeing individual liberty and defending justice, the human conscience isn’t enough. We need the rule of law. Every public official knows that bribery is wrong, for example, yet we still need bribery statutes. As James Madison wrote in Federalist 51, “If angels were to govern men, neither external nor internal controls on government would be necessary.”
I understand why the Supreme Court has placed so many roadblocks in the path of official accountability. It wants to encourage the “vigorous exercise of official authority.” Protecting the vigorous exercise of authority is one reason the current Supreme Court carved out a broad zone of absolute immunity for American presidents in Trump v. United States.
There is an obvious need for government officials to exercise lawful authority, but we cannot forget a fundamental principle articulated in the Declaration of Independence. “Governments are instituted among Men,” Thomas Jefferson wrote, for the very purpose of securing our unalienable rights. If the “vigorous exercise of official authority” contradicts the Constitution, it deserves no protection.
Judge Willett’s dissent is correct about the state of modern American law. The Klan Act “was meant to open courthouse doors, not bolt them shut.” But that’s exactly what courts have done to plaintiffs like Erma Wilson for more than 150 years. She is the one paying the price now, but millions of other Americans have paid it, too.
A sad update
In June, I wrote an extended newsletter about the case of Marcellus Williams, a Missouri man on death row who was convicted of the horrific murder of a former St. Louis Post-Dispatch reporter named Felicia Anne Gayle. I was concerned that Missouri might execute an innocent man.
I’m not certain that he was innocent. There was no mic drop moment that proved he had nothing to do with the murder, and there was certainly some evidence to support the conviction. He pawned the victim’s laptop, the victim’s property was found in a car that his grandfather let him drive, and his girlfriend and a jailhouse informant told the police that he had confessed to the crime.
At the same time, however, the physical evidence was profoundly lacking. His DNA wasn’t at the scene. His DNA wasn’t on the murder weapon. His DNA wasn’t under the victim’s fingernails (in spite of the fact that Williams’s girlfriend said he’d been scratched). The bloody footprints at the scene didn’t match his, nor did the fingerprints. There were problems with racial bias in jury selection.
The sum total of these evidentiary problems caused the prosecutor’s office in St. Louis to file a motion to overturn Williams’s conviction. The prosecution and defense even agreed to a plea deal that would have granted Williams relief from execution while keeping him in prison. But the Missouri Supreme Court rejected that deal, the governor of Missouri rejected Williams’s last-ditch request for clemency, and the United States Supreme Court rejected Williams’s request for a stay by a 6-to-3 vote.
On Tuesday night, Missouri executed him. When the news came, I felt sick to my stomach. I’m not certain that he was innocent, but regardless of your feelings about the death penalty, there was simply not enough evidence to take this man’s life.
The problem arises especially today that we have an obligation to help everyone and that isn't feasibly possible. We are now learning that lesson all over again.
