Tuesday, November 25, 2014

The language of the unheard

It is not my intention to write about rioting, looting, and other criminal mischief that occurred last night in Ferguson, Mo., after the decision of the grand jury empaneled to investigate the death of Michael Brown was announced.

Neither is it my intention to write about that decision, the "no bill" result, that means that for now Darren Wilson will face no charges in connection with that death.

As to the latter, as I wrote last night on Facebook, there was a process followed.  Process produces justice, whether or not we like the result.  In any criminal matter, no matter who is being investigated or accused, the process, when followed, produces justice.  Injustice results from the failure to follow process.

As to the former, to the extent that those actions were taken in actual protest of the grand jury's decision, those actions are wrong and should be prosecuted as criminal acts.  To the extent that those were the actions of opportunistic criminals, they are irrelevant to our purposes here.

Everything that has occurred in connection with this case--the riots, the protests, the candlelight vigils, the political entanglements, the efforts of the police to discredit Michael Brown, the racial disparity between the Ferguson police force and the community it serves, the handling of the long-term investigation, the handling of the grand jury, the prosecutor's half-hearted presentation of the case to the grand jury, the handling of the immediate investigation, the statements of the witnesses, and so on, up to and including the killing of Michael Brown, are symptoms of a much larger problem.

Symptoms, not the problem.

This problem is one that few people want to discuss honestly, because they are so entrenched, so dedicated to the idea that they must prevail in the controversy, that they cannot recognize the problem.

A quote from Martin Luther King, Jr., from a 1966 interview with Mike Wallace has gotten considerable exposure in recent days.  In that interview, King was seeking to explain the context of race riots across the United States, most famously in the Watts district of Los Angeles but elsewhere as well, where the "Black Power" movement pushed back against King's advocacy of nonviolent resistance.  He said:

I will agree that there is a group in the Negro community advocating violence now. I happen to feel that this group represents a numerical minority. Surveys have revealed this. The vast majority of Negroes still feel that the best way to deal with the dilemma that we face in this country is through non-violent resistance, and I don't think this vocal group will be able to make a real dent in the Negro community in terms of swaying 22 million Negroes to this particular point of view. And I contend that the cry of "black power" is, at bottom, a reaction to the reluctance of white power to make the kind of changes necessary to make justice a reality for the Negro. I think that we've got to see that a riot is the language of the unheard. And, what is it that America has failed to hear? It has failed to hear that the economic plight of the Negro poor has worsened over the last few years.
In the aftermath of the attacks of 9/11/01, when American jingoism hit a fever pitch, we engaged in very little self-examination and focused the entirety of our attention upon striking back at our enemies.  Those attacks were given a status in American lore equal to that of the attack on Pearl Harbor on December 7, 1941--namely, that the terrorists who attacked us had unfairly and unreasonably targeted a nation entirely innocent of wrongdoing against them, that it was an unprovoked attack, undertaken from pure hatred of Americans for who we are.

Maybe all of that is true.  But few Americans were interested in testing the hypothesis.

The problem with the quintessential jingoist battle cry--"My country, right or wrong!"--is that it excludes the real possibility that we can be wrong.

Do not misunderstand me:  The 9/11 attacks were wrong and utterly unjustifiable.  I am not suggesting in any way that we deserved those attacks.  But as humans we have to live in the world.  We have to deal with other humans as they come to us, not as we would like for them to be.  To be the most effective at protecting ourselves, and in a broader sense to execute our morality,1 we must seek to understand those who hate us, and why, and if we can reasonably modify our behavior to neutralize that hatred, we owe it to ourselves at least to consider doing so.  This is true regardless of the merits of that hatred.  Even if it is entirely irrational, we must first seek to reform ourselves.

1 Regular readers of this blog know that I do not equate morality and religion at all, but I am reminded of this passage from the Sermon on the Mount that I find particularly instructive as one of the keys to being a good human:  
“You have heard that it was said, ‘Love your neighbor and hate your enemy.’ But I tell you, love your enemies and pray for those who persecute you, that you may be children of your Father in heaven. He causes his sun to rise on the evil and the good, and sends rain on the righteous and the unrighteous. If you love those who love you, what reward will you get? Are not even the tax collectors doing that? And if you greet only your own people, what are you doing more than others? Do not even pagans do that? Be perfect, therefore, as your heavenly Father is perfect." 
(Matt. 5:43-48 (NIV).)

Qualitatively, the problem we as Americans must face today is the same.2  There is a seething hatred and resentment for law enforcement among minorities.  We can treat that hatred as a disqualifying condition.  The result of that will be more of the same thing we have seen for the last fifty years (or maybe for much longer).  Racial minorities will continue to live in a peculiar combination of a lawless community and a police state.  Genuine criminals will continue to act with impunity to persecute those in their communities who are less willing to pursue violence as an economic tool, while law enforcement will continue to treat members of those communities uniformly as subhuman predators.

2 I am not equating racial minorities with radical terrorists.  This is merely a question of the normative approach to an intractable problem, not a value judgment about the participants.

In the last day, I have read a great deal of commentary from law enforcement sources who seek to justify Darren Wilson's actions, to uphold the decision of the grand jury as not only a just result but a proper one, and to focus upon building up the law enforcement community as a great bulwark against the lawlessness of minority communities.

What I have yet to see is a single person ask the question:  Why do black people hate cops so much?
Or, at least, when the question is asked, the focus is on what might be the defect in black people that causes them to hate the brave, honest, and true police officers who are only there to help the community.

Never is the question asked:  What, if anything, is it that cops are doing that creates distrust in the black community?

Even if you believe that Darren Wilson's actions were justifiable, have you stopped to ask yourself, is it possible that a cop in his position could be trained to handle that situation better than it was handled?

If you refuse to ask that question, isn't that really the same as saying that we want a cop in Wilson's position to kill Michael Brown?

What the law enforcement community has done over the last few months since Brown was killed has been entirely focused on justification for the killing.  Apart from the use of body cameras,3 there has been no real talk among law enforcement about what to do to make that kind of situation more rare, to improve the professionalism of police officers, not only through the improvement of their policing skills but also by teaching them to defuse controversies and to resort less often to deadly force.

3 While I think body cameras are a good idea, law enforcement officials should not need to be scared by the possibility of scrutiny into doing the right thing.

Can we legitimately say that the Ferguson community got the best outcome it could reasonably expect on August 9?  And as this scenario plays out time and again on our American soil, are we as Americans getting the best outcomes we could reasonably expect?

I don't think so.  I think we can do better.  In fact, I know we can. And it starts with holding those who have power responsible for the way they exercise it, maybe not in a criminal sense, but through the improvement and professionalism that can only come from introspection and correction.

It is time to stop apologizing for Darren Wilson.

Even if you believe that Michael Brown was a thug whose death has left this world a better place, it is time to stop apologizing for Darren Wilson.

It is time to stop using the violence that has resulted as an excuse for inaction or, worse, as an excuse for what has occurred.

Likewise, it is time to stop using the inaction that has occurred as an excuse for violence.

I am not nearly as concerned with what happens to Darren Wilson, or to those who have burned stores and cars, as I am with what happens to Ferguson's police department, or to the broader law enforcement community, or to our nation as a whole.  Wilson is one man, and the problem is far bigger than him.

We cannot allow ourselves to be distracted by what happens, or doesn't happen, to him.

We have bigger problems to deal with.

But, why law enforcement, you ask?  Why shouldn't the black community go first with introspection and reform?  The reason is simple:  We need to start with law enforcement because law enforcement has the power.

No meaningful reform has even been undertaken that did not begin with the decision of those in power to relinquish that power in some respect.

Just now, as if on cue, one of my closest friends texted me that she had been crying all day.  Her commentary shows where her heart is--right where I expected it to be.  "I'm afraid the place I want to leave for my children will never happen," she wrote.  "I hate to be that way but until people learn that events don't happen in a vacuum and [no longer] refuse to have open and truly honest discussions, we will keep reliving this nightmare over and over."

This is true, of course.  We have to start somewhere, so let's start here.

Friday, November 21, 2014

Exploding your heroes

I've been thinking for several days about what to write about Bill Cosby.  Writing about the subject of his recent public relations troubles presents several challenges for me.

It's a story that involves the tearing down of a black American icon.  As a white guy, albeit a very progressive one, especially on racial matters, I believe it's necessary to proceed with caution.  There are too many white folks who are eager to tear down black icons whenever the opportunity presents itself.

It's a story that involves rape.  As a man, albeit a very progressive one, especially on matters relating to women's empowerment, I believe it's necessary to proceed with caution.  There are too many men who are eager to cast doubt upon claims of rape, if not to excuse rape outright, whenever the opportunity presents itself.

It's a story that involves allegations of criminal conduct from long ago.  As a lawyer, and as one who believes strongly in the Constitutional protections afforded to the accused, I believe it's necessary to proceed with caution.  There are too many people who are eager to convict people, or acquit them, in the court of public opinion, whenever the opportunity presents itself.

It's like a subway where all three of the rails are electrified.  But I have something to say about all of this, after a lot of careful thought.

I have always viewed Bill Cosby as a comedian first and foremost.  I watched the Cosby Show because it was popular and funny and seemed culturally significant.  I watched his later sitcom (the underappreciated Cosby, with Phylicia Rashād, Madeline Kahn, and Doug E. Doug) mostly because it was funny.  His stand-up comedy--or, really, sit-down, as he mostly told stories from a chair--was and is brilliant.  Like the best comedians of his era--Bob Newhart in particular comes to mind--he has an exquisite sense of timing.  If you want to learn to tell jokes and stories in a comedic way, study him.

Aside from being a comedian, he's a highly educated man.  He holds an earned doctorate in education from the University of Massachusetts-Amherst.  When he speaks on serious matters, people listen to what he has to say.

Psychologically, it's hard for me to square my mental image of this man who's made me laugh for so long a time with the very ugly accusations against him.

It is, in a very real sense, the same as the very ugly accusations against Stephen Collins.  I have been a Stephen Collins fan since he starred in Tales of the Gold Monkey--another underappreciated show--and while I thought 7th Heaven was a treacly mess of bad writing and worse acting,* he was my favorite character.

* - Despite that, I have seen every episode, because one makes concessions when one's wife likes things that one doesn't.

And yet during that time he was apparently forcing a young girl to touch his penis.  It's just hard to square the one image with the other.

Unlike the allegations against Stephen Collins (who admitted to his criminal conduct on tape), the allegations against Bill Cosby are of a nature that they probably can't be fully substantiated, and Cosby isn't talking.  It's of course possible, though extremely unlikely, that the women (or some of them) who have come forward to accuse him of forcible rape have done so in hope of getting something for themselves.  But the truth is that there has long been a trail of whispered accusations of affairs and such, and the oldest contemporaneous allegation of rape is nearly fifteen years old.

There is a tendency for people to hold celebrities up as heroes.  I've never been one of those people, but even I have to admit that until recently if you were going to pick a celebrity to be a personal hero, Cosby wouldn't have been a bad choice.  There are a lot of people, especially white people, who, upon seeing the Cosby Show, came to view black people--especially black professionals--in a different light...namely, as people, rather than black people.  It was a watershed moment in American television and American culture.

The problem is that when you pick humans to be your heroes, they have an annoying tendency to blow up in the face of your hero worship by being human.  Humans do bad things.  They make mistakes.  Sometimes those mistakes are tragic.  Sometimes those mistakes are crimes, repeated many, many times, and sometimes those crimes affect the victims for the rest of their lives.

I don't know whether the allegations against Cosby are true or not, but there is an awful lot of smoke for there not to be any fire. I do know that even the possibility that it could be true has left me profoundly disappointed and sad.  And that's not something I ever expected out of this guy.

Thursday, November 20, 2014

Turning the tide

It's an important day in Arkansas today.  This morning, the Arkansas Supreme Court heard oral arguments in the state's appeal from Judge Chris Piazza's decision earlier this year invalidating that portion of the Arkansas Constitution that restricts marriage to one man and one woman.  And as I type this, a federal district judge is hearing arguments in a similar case that seeks the same result.

The good guys in both cases are represented by Jack Wagoner, a talented Arkansas trial attorney who brought these cases to vindicate a simple principle:  That we ought to treat that committed relationships of homosexual couples with the same force and dignity with which we treat the committed relationships of heterosexual couples.

A lifelong friend of mine is one of the plaintiffs in the federal case.  She and her wife have been married for quite some time, and they have children together.  They have built a life of love and a family together in exactly the same way as any other married couple does.  What had been missing until Judge Piazza's ruling was the legal recognition of their marriage.  They were able to get that legal recognition--and corrected birth certificates for their children, reflecting both parents' names--during the short window between the ruling and the issuance by the Arkansas Supreme Court of a stay of that ruling a few days later.

I have heard all of the arguments why my friend and her wife don't deserve the same thing as my wife and I got when we married.

It has been argued that their relationship is immoral and sexually deviant.

It has been argued that their relationship is detrimental to their children.

It has been argued that the people of Arkansas voted by an overwhelming majority to keep marriage restricted to opposite-sex couples.

It has been argued that Arkansas has a compelling interest in promoting heterosexual marriage for the protection and benefit of children.

It has been argued that recognition of same-sex marriages will degrade the value of opposite-sex marriage.

It has been argued, by persons who appear to be serious in their argument, that recognition of same-sex marriage will lead to incest and bestiality.

It has been argued that only opposite-sex marriage carries the tradition of millennia.

It has been argued that the Bible commands us to sanction only those marriages that are between one man and one woman.

These arguments are not real arguments.  They are pretexts.

These arguments, no matter how sincerely felt by those who advance them, constitute the moral bankruptcy of prejudice and hatred.  Those who advance them are bigots, whether or not they clothe themselves in the flag or the cross.  As loath as I am to call ugly names, there is no other name that fits.

We are at a place where people of good conscience can no longer disagree about this subject, not today, not knowing what we know, and especially not in our Constitutional Republic.

Others have noted, and I echo, that each of those arguments, modified only as to the subject, was lodged against what states referred to as "miscegenation," the marriage of members of different races.  More than forty years ago, the U.S. Supreme Court saved us from the bigoted instincts that led to those kinds of laws.  The reasoning of the unanimous Court was a beautiful and powerful statement of equality before the law:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. ... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.
Just as not one person--other than Mildred and Richard Loving and their family, and the different-race couples who became free to marry--was affected by the invalidation of the anti-miscegenation laws, no individual in our society who is not gay will be negatively affected by the full equality of same-sex marriages before the law.

If you don't believe that same-sex marriages are right, you are perfectly free not to enter into one.

But how can you dare to tell my friend that she is less than you, less American, less worthy than you are of making a dignified commitment to the person she loves and wants to spend the rest of her life with?

Could you look her in the eye, in person, and say to her that she is not your equal?  That she is not entitled as entitled to the happiness she seeks as you are to the happiness you seek?

I could not, even if I were motivated by some irrational hatred to think those things.

But I would be lying if I said that marriage equality won't change Arkansas.  It will change us, for certain.  It will bring us closer to the promise of freedom that so many have fought to achieve.  We Americans have not always been the best people we could be.  Slavery, Jim Crow, the internment of Japanese-Americans, 100% Americanism, the denial of equal rights to women, the removal of Native Americans from their lands--these are but a few of our moral transgressions, of our failure to honor our highest principles.  Sometimes it seems that we have gotten it wrong more often than we've gotten it right.  But at every turning point, at every time when we have been faced with the opportunity to turn away from the old ways and toward our greater promise, there have been brave men and women to show us the way.  They have rarely constituted a numerical majority, but they have always been a moral majority, operating with truth and logic and above all principle on their side.

In the coming days and weeks, the seven justices of the Arkansas Supreme Court, and the district judge and (most likely) three appellate judges, and maybe even the U.S. Supreme Court will decide these issues.  I'm hoping for the triumph of love over hatred, of equality over prejudice.  The tide will turn.  It's easy to be impatient, but we'll get there eventually.  We always do.

Tuesday, November 11, 2014

Enough with platitudes and poppy-wearing

I've spent most of the day thinking about this blog entry.

This is Veterans Day.

Ninety-six years ago today, World War I ended, so this day has been variously marked as Armistice Day and Remembrance Day, especially among the Allies who won that war.  As that conflict receded from our collective memory, the day came to be the day on which we honor all of those who served in the American military, in wartime or not.

This is a day that makes me angry.

It's not that I have a problem with honoring veterans.  Much to the contrary, in fact.  Regardless of the circumstances, the veterans we honor today pledged themselves to a purpose greater than themselves, to the defense of this nation.  There aren't enough words in the English language to describe the meaning of such a selfless act.

But there are several aspects of the behavior of Americans on this day, and on all the other days, that anger me, or at least disappoint me.

It is a small thing to say thank you to veterans on this day.  In fact, it's such a small thing that it might literally be the least we could do.  That doesn't mean it's not important--it is. 

When our country goes to war, a debt of honor accumulates.  It's absolutely true that "freedom isn't free," as the sign in front of Sam's Club this morning read.  These men and women have agreed to pay that cost for us as a whole.  But in the great ledger of life, that creates a credit balance.  To the ones who return from war, we owe special consideration in education and job training and jobs and housing and health care.  We owe it to the ones who return from war with physical and psychological injuries to restore them to health as best we can, and if we can't, then we are obligated to give them the care we can give them.  And to the ones who don't return, well, we owe them our respect, and we owe their families the support that has been taken from them.

But we owe an even greater debt still.  We owe it to our veterans to create as few of them as are necessary to the survival of the Republic.  For most of my adult life the cost has been too great.  The leaders who decide to go to war have been altogether too cavalier about that cost, and they have been cruelly reluctant to pay for the consequences of those decisions.  It is as though they have some mental block about what it means to lose 4,425 American servicemembers and to expose 32,223 more to the wounds of war, all in a war of choice in Iraq.

It is no criticism, no diminishment, no derogation of their service to say that the casualties these Americans experienced in our name were founded on a lie.

More than ten years on, it still angers me that no one who lied to advance us into war with Iraq has been called to account for it.

George W. Bush happily paints pictures fraught with subconscious symbolism and hawks his revisionist-history books.

Dick Cheney remains a sought-after political commentator.

Condoleezza Rice gets to help pick the football playoffs and golf at Augusta National, and is mentioned on the short list for when Roger Goodell either retires or is fired as NFL commissioner.

In a just world these people, and others, would be in jail, doing a small part to pay the debt they incurred without reason.

They won't be called to account, because no one is brave enough to do so, no matter how much the wound on our American soul gapes and bleeds.

Most Americans have heard the saying, "My country, right or wrong."  We are conditioned almost from birth to believe that we live in the greatest country in the world.  In some respects that's true, but not always.  I would not trade my American citizenship for any other, but it does us no good to believe that we are great when we are not great, that we can do no wrong when we so obviously do wrong every day.

We are not the greatest nation on earth.

But we can be.

When in the early days of the Republic Stephen Decatur, one of those days' great and daring naval heroes, raised his glass to toast America, this is what he said:

Our country! In her intercourse with foreign nations, may she always be in the right; but our country, right or wrong.
We cannot help but be Americans.

But is it too much to ask that we do what we can to recognize where we fall short and to put it right?

Can't we insist that together we bring more light than heat to the world?

In my mind, that starts with making this holiday mean something real.  Enough with the platitudes and poppy-wearing.  Let's set about the work of making this country something worth fighting for.  That's how we repay that debt.