The Great Pause Week 93: Critical Justice Theory
Taking no as the first step to yes.
Back in the early 80s we were going through a pretty rough patch at The Farm community, then some 1200 strong — lots of set-backs, and fielding heavy debt from cascading failures from undercapitalized or bad business ideas had us questioning leadership, mission, planning, and governance. Going on a “wing and a prayer” just wasn’t cutting it.
As director of The Natural Rights Center I could not go out en masse with the hero brigades tree-planting, or welding on an oil rig off Houma Louisiana, or to any of the other gigs that were being offered to help us get out of debt because I had so many court cases and was our only full-time staff attorney. Atomic workers and veterans, the Honicker case at the Supreme Court, efforts on behalf of Native peoples for religious freedom and land access, the MX missile EIS, Mount Pleasant’s toxic waste ponds and wells, amicus briefs, appellate briefs of various kinds, all keeping me tied to the small office cabin in the woods with my law library and a dorm for volunteer summer student interns. I had moved my office to that cabin to be next to home while the kids were young.
I was busy every day, filing papers and researching and writing and so it was impossible for me to imagine going off and doing tree planting for a couple weeks. Nonetheless I looked around to see where it might be possible that I could integrate an income stream into my work to help do my part to pay off the Farm’s bills. And that was tricky because my work was entirely supported by charitable donations to Plenty that were allocated and restricted to the Natural Rights Center and could not be diverted to the inurement of The Farm.
My law license also required diligence in separating the work I did for free from anything for money. If took a paid lawyer job I would have a conflict because as a member of The Foundation I was on a vow of poverty and all earnings went to the communal religious order, not to me personally, and the Tennessee Bar Association might have an issue with that vis a vis who is licensed to practice. I sought an Ethics opinion that clarified the matter, instructing me not give my legal earnings to The Farm. I formed a professional corporation and kept it all tidy.
But going off and doing tree planting for a couple weeks was simply not in the cards. Then I was sitting in court one day and the judge asked, “Mr. Bates, can you handle a case?”
Whenever they had criminal cases come to arraignment and there was no representation, since they didn’t have a public defender, they would appoint someone right there. They would assign it to a local member of the Bar, usually someone who was present in court. And all members of the five-county bar felt an obligation to step up and volunteer if called upon this way, unless they were in trial or otherwise fully loaded down with other appointed cases.
Since I was a newbie there — I didn’t do retail trial work in the county generally, but practiced in the federal courts — I had no experience in the criminal court or had ever studied more than I had needed of that process to pass the Tennessee Bar Exam. But the Farm needed cash so I said okay.
I was appointed to represent a one Mr. Charles Wesley. The pay was something like $600 for the entire assignment, including if it went to trial. For most assigned counsel these were quickies. You cut a deal, pled the client out at arraignment, he was remanded back into custody and led off in shackles, and you went to the cashier’s counter for your check.
No matter how much I might spend or whatever it cost me to bring in witnesses or use an investigator, $600 was the flat fee for representing someone on a felony charge in Hohenwald, Tennessee in the early 1980s. And arguably that was a better system, and less rigged, than an overworked, salaried, 9-to-5 sole public defender with thousands of cases, a 5-year backlog, and perhaps hundreds of clients jailed all over the state, shuttling between available shift-shared beds, awaiting trial unless they pled to something they may not have been guilty of. Thousands just like Charles Wesley, wrong place, wrong time. Driving While Black.
I went down to the basement below the courtroom and met my client in holding and interviewed him. He was a good looking young man, lean, well groomed, athletic, in school, no priors. His face was all puffy and I asked him why. He said the food. It was too salty. He was having a reaction. He had asked to have it salt-free but had been refused. I later spoke with the Sheriff about cutting out his salt.
Some striking passages from this week’s piece in New York Magazine by Kerry Howley: “Gina. Rosanne. Guy. What do you do the day after you storm the Capitol?,” remind me of how little the American gulag has changed since Norman Mailer penned similar descriptions of conditions suffered by the Pentagon protesters in his non-fiction 1968 novel, Armies of the Night that won a Pulitzer and the National Book Award but apparently didn’t change anything. Howley writes:
In Grady County, Gina was placed, alone, in a room the size of a basketball court. In the corners lurked something foul and brown, and she didn’t know if it was human filth or the brown towels inmates had and were shedding. She was very cold. She was desperate for a Diet Coke. She had only one pair of underwear, which she washed in the sink, shivering as her hands touched the cold water. The blue mat she was given to sleep on, split in several places with stuffing coming out of it, was so rancid she could not bring herself to use it, so she slept on a hard plastic cot, huddled into a ball to try to keep warm. When she asked for a blanket, a guard said he would have to ask the captain. In a lawsuit filed in 2009, a Grady County inmate said he was so cold he used the Saran Wrap in which his lunch came to wrap up his feet, at which point the guards started dropping sandwiches in his cell unwrapped.
Regardless of how we may receive this assessment… a country that protects the right to spin fantasy necessarily risks the well-being of those who easily lose themselves to it. Freedom isn’t free is a true thing the right used to say, and the costs of freedom of speech are real costs, borne, in part, by those unskilled at sifting fact from fantasy: the people who join MLMs, who become Scientologists, who lie awake in bed at night worrying over small children drained of adrenochrome. To spear the fact in the sea of grift is not an act of intelligence, exactly, but a kind of sensibility, a certain instinct for grasping the structure of the social world. We like to think of conspiracy theories as outside the realm of intelligent consideration, but the idea of children trafficked via a discount-furniture retailer is not more strange than a network of cages, built to maintain a centuries-old racial hierarchy and kept so cold that Saran Wrap socks register as an act of resistance, in which white rioters who deny the existence of systemic racism now find themselves.
Returning to 1980, from the police reports and the interview I learned that Charles Wesley was a getaway driver at a QuikStop hold-up. His story was that some friends had asked him to take them for a drive out to the country to see the scenery outside Nashville. They had pulled into a QuikStop off the highway and he waited in the car while they used the restrooms and bought some snacks. Then they came running out, jumped in the car and told him to hit it. He realized they had just heisted the place and so he floored the car and cut a gravel slalom track out of the parking lot. That was witnessed, incriminating him. They were stopped by police a few miles down the road.
His friends had pled and posted bail but he asked for a lawyer so he got me. I confirmed the details of his story as best I could and then went to the D.A. The prosecutor wanted felony accessory, one year, less time served. It was a fair deal and I advised my client to take it, which he did. He did his time and got out early for good behavior, but with a catch.
And his catch caught me.
He was now a felon, and in those days, the Republican voter suppression squads were ramping up a new strategy to keep blacks from voting: felony disenfranchisement. State after state, beginning in the usual bastions of the Confederacy like Florida and moving to places of more subtle elite control like Delaware, were lining up laws permanently revoking the franchise from anyone convicted of a felony, meaning a crime carrying a sentence of one year or more.
I had just pled my young client to lose his right to vote. Forever.
So much for making money for The Farm on indigent arraignments. Now I had a damn constitutional case.
Wesley versus Collins
Under the US Constitution, the several states retain the right to regulate voting and set standards, even for federal elections. Nonetheless, my choice of familiar terrain on which to fight this battle would be the federal courts and to do that I needed to establish jurisdiction.
I argued that the Tennessee statute disenfranchising felons resulted in the unlawful dilution of the black vote in violation of the U.S. Constitution and the 1973 Voting Rights Act as amended in 1982. Prior to ’82, striking a voting regulation required proof of discriminatory intent. After ’82 a plaintiff needed only to show that a challenged statute had the result of denying minorities “an equal chance to participate in the political process.”
Section 2(b) of the Voting Rights Act Amendments provides that vote dilution in violation of the Act is established if,
based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by [the Act] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
This jurisdictional point was taken up by the courts in 1985 for the first time in my case of Wesley v. Collins. 605 F. Supp. 802 (M.D. Tenn. 1985), aff’d, 791 F.2d 1255 (6th Cir. 1986). The lower court simply ignored the new Voting Rights Act dilution test and concluded:
“Felons are … disenfranchised based on … their conscious decision to
commit an act for which they assume the risks of… punishment.”
The District Judge got lost in a “misdirected search for a causal nexus between the ‘indicia of historically-rooted discrimination and the Tennessee statute disenfranchising felons,’ according to one later law review. He instead should have, under the 1982 law, examined the statistical data showing impact, and weighed “totality of circumstances.”
Following extension of the felony disenfranchisement laws to a third of the States, the 1990 census reported that blacks accounted for roughly 12.1% of the total U.S. population in comparison to a 80.3% white population. Thanks to the war on drugs, profiling, DwB and similar scams, blacks represented 47% of a total convicted felons and 48% of those convicted of violent crimes. Ninety percent of felons were of voting age. The black voting age population had shrunk to 4 percent. It was a Republican wet dream.
At trial I presented expert evidence demonstrating that:
“the ratio of white felons to the general population of Tennessee whites [was] approximately 1 to 1000, while the corresponding black ratio [was] 1 to 100.”
Wesley, 605 F.Supp. at 804.
On appeal, standing before the three-judge panel in Cincinnati, I cited the statistics of the time for felony convictions of blacks versus whites and also cited violation of the Fourteenth and Fifteenth Amendments but was cut off that line because if I could not prevail on the dilution point it would be unlikely the other points would succeed. Ultimately the Appeals court endorsed the flawed logic of the lower court:
“[i]t is well-settled … that a showing of disproportionate racial impact alone does not establish a per se violation of the Voting Rights Act”
Wesley v. Collins, 791 F.2d 1255, 1260–61.
So that was it. The federal courts essentially thumbed their nose at the 1982 Voting Rights Act amendment and summarily ended Charles Wesley’s franchise, using the wrong standard of proof.
This is the first of two parts that I will use to close out this, the second year of The Great Pause gifted to us by the Covid pandemic. This memoir is part of a book I am developing with a Russian co-author, Тюрин Глеб, to recall for large literary audience of Russian-speaking youth the story of the hippies, and in particular the relevance of the The Farm to today’s ecovillage and ecosystem regeneration movement, now growing strong across the white frosts of that vast, beautiful, and ever-changing landscape.
Next Time: The Great Pause Week 94: Restoring the Felon Vote in Tennessee in 1981, and the big win at the Tennessee Supreme Court.
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