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Extreme Justice in America

by CHRISTOPHER BRAUCHLI

Extreme justice is extreme injustice.

— Legal maxim cited by Cicero in De Officiis 

The August 12, 2013 verdict against Whitey Bulger offered some reassurance that the legal system in the United States does not always produce wrong results.   That counteracted the impression left by (a) the August 12, 2013 findings of the New York federal judge that New York city’s widely touted “stop and frisk” law violates the constitutional prohibition against unreasonable search and seizure and the guarantee of equal protection and (b) three pieces in the August 11, 2013 New York Times.

With respect to Mr. Bulger, on August 12 a Boston jury found that Whitey Bulger was guilty of, among other things, murdering 11 people. Of course the trial also showed that Mr. Bulger had corrupt minders in the FBI who were upholding the criminal conduct of one of their charges rather than upholding the law.  Nonetheless, good news must be taken where it can be found.

Disheartening news was offered by the three pieces in the New York Times.  The first, by Nicholas Kristof, captioned “Help Thy Neighbor and Go Straight to Prison,” shows what damage a mindless, but powerful U.S. attorney can do in the name of making sure his singular idea of justice is done.  Many years ago Edward Young was convicted of several burglaries, none of which involved the use of any weapons.  When he was released in 1996 he turned his life around, got married, had four children and got a good job until physical problems forced him to quit working and become a stay at home dad for his four children.  Then a neighbor died and with his death Mr. Young’s problems were born.  The neighbor’s wife asked Mr. Young to help him dispose of her husband’s personal stuff.  He helped her clean out, sell and otherwise dispose of her husband’s belongings.  Among items Mr. Young cleaned out but neglected to sell were seven shotgun shells that he put aside so his children wouldn’t find them.  Sometime later he became a suspect in a burglary case and his home was searched and the shells were discovered.  Mr. Young was prosecuted under a federal law that bars ex-felons from possessing guns or ammunition and is accompanied by a mandatory 15-year prison sentence.  When Mr. Kristof asked the prosecuting U.S. attorney, William Killian, why he’d want to put Mr. Young behind bars for 15 years Mr. Killian had what Mr. Killian thought was a perfectly good explanation.  He was quoted by Mr. Kristof as saying that:  “The case raised serious public safety concerns.”   Mr. Killian knows something the rest of us don’t or, maybe he doesn’t know anything.  The latter is more probable than the former.

The next piece was by Frank Bruni entitled “Fatal Mercies.” Barbara Mancini’s father, Joseph Yourshaw, aged 93, was receiving hospice care and wanted his life to end. He asked his daughter to give him the bottle containing his painkiller medicine which she did.  He drank its contents and died.  Barbara has been charged in Pennsylvania with a violation of the Pennsylvania criminal law dealing with “Causing or Aiding Suicide,” a felony punishable by 10 years in prison.  Mr. Bruni says that in his investigation of the events he can find no evidence that Barbara did anything more than hand her father the bottle.

The last piece by John Grisham  entitled “After Guantanamo, Another Injustice” takes us back to Guantanamo, a place we have visited before, to examine the inhumane practices engaged in by the administration for reasons that are best known to the administration since no one else seems able to explain them.  In Mr. Grisham’s piece he describes the treatment accorded Nabil Hadjarab, an Algerian man who grew up in France.  Mr. Grisham describes the circumstances leading to his arrest in Afghanistan.  None of what Mr. Grisham describes suggests that Mr. Hadjarab’s arrest was warranted or justified the treatment to which he was subsequently subjected.  That treatment included being placed in an underground prison and tortured, being forced to sleep in bitter cold on cement floor without any covers, etc.  When he finally got to Guantanamo his abusive treatment continued. In the 11 years he has been at Guantanamo Mr.Hadjarab “has been subject to sleep deprivation, sensory deprivation, temperature extremes, prolonged isolation, lack of access to sunlight, almost no recreation and limited medical care.”  He has never been charged with any terrorist activity.

In 2007 a review board recommended he be released.  He was not.  In 2009 another review board recommended he be transferred.  He was not.  He joined other prisoners in a hunger strike that resulted in his being force-fed, a form of torture that the administration believes is preferable to having prisoners starve to death while in U.S. custody, an outcome that would reflect badly on the country’s well-known humanitarian instincts.

Mr. Grisham fears that Mr. Hadjarab may now be transferred to Algeria where he has no contacts, rather than to France where he grew up and has family.  Only time will tell whether his fears are justified.  What we don’t need time to learn is that enforcement of laws in the hands of the wrong people produce results as bad as the results authorities hope to prevent.

Christopher Brauchli is a lawyer living in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu.

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