The judge threw the book at Joya Williams, a former Coca-Cola company secretary. In May 2007, U.S. District Court Judge J. Owen Forrester sentenced the 42-year-old African-American woman to eight years in prison, a sentence substantially longer than that suggested by the federal sentencing guidelines. Her crime? Conspiring to steal and sell the formulas for several “top secret” Coca-Cola beverages.
Granted, Ms. Williams did nothing commendable. But did the theft of a multinational corporation’s formula for flavored fizzy water merit a jail sentence three times longer than Scooter Libby’s four count conviction for perjury and obstruction of justice as part of the cover up for outing a “top secret” CIA agent?
Judge Forrester, a 1981 Reagan appointment to the federal bench, gave Ms. Williams the exceptionally long prison sentence because, in the judge’s words: “This is the kind of offense that cannot be tolerated in our society.”
So, let’s do a quick inventory of what other offenses can and cannot be tolerated in our society:
Government wiretapping of its own citizens without warrants and eavesdropping on private email traffic? Apparently not a problem. Happens all the time.
The kidnapping and years-long detention of “suspects” without charge or access to legal counsel or proof of wrongdoing? Hardly intolerable, say our President and Vice President.
The US government either operating its own or out-sourcing secret torture dungeons around the world? Certainly not intolerable, eh, Professor John Yoo?
Shredding the Geneva Conventions? Not a problem, according to Alberto Gonzales!
Washington’s promotion of civil war1, invasions and instability throughout Africa and the Middle East in the name of “democracy” and “free trade”? Unh uh.
The Congress’s evisceration of the Bill of Rights and the gutting of the centuries old doctrine of Habeas Corpus? Nope, doesn’t register a blip on America’s “intolerable” meter.
Blatant election manipulation, gerrymandering, vote caging and outright voter disenfranchisement? Ho hum, that’s just “business as usual”.
Lying the nation into an imperial resource war and continuing to fund it in the name of “supporting our troops”? Not a thing wrong with that, say Democratic and Republican party honchos.
Murdering Black New Orleans through not-so-benign neglect, criminal abandonment or malice aforethought? Apparently there’s nothing intolerable about that in our society.
Complicity in the murder of union organizers in Colombia? No, that’s hardly unacceptable, especially as compared to stealing and selling Coca-Cola’s secret formulas.
So, is anything else “intolerable” behavior in our society, other than conspiring to swipe soda pop recipes? We cannot forget that in America the law applies equally to all, high and low, rich and poor.
Well, kinda, sorta.
Come to think of it, there certainly seems to be more law for the masses and less law for more important people. It actually seems like the lower down the rungs of society and the closer “justice” gets to the common people, the tougher and more certain are the legal consequences of stepping out of line. Thus, the exceptional eight year sentence dished out by the judge in Atlanta (not coincidentally, the corporate headquarters of Coca-Cola) to the employee who violated the property rights of her corporate employer. Thus, the seven year prison sentence for Daniel McGowan, an Earth Liberation Front activist, labeled by Oregon US District Court Judge Ann Aiken as an “eco-terrorist” for his property-damaging acts of arson in defense of the environment. But will Boeing be labeled an “eco-terrorist” for the environmental harm wreaked by its war machines? Will Monsanto be charged with “eco-terrorism” for polluting Nature with pesticides, herbicides and genetically modified seed? Has Coca-Cola been held responsible for its property damage to farmland in India because its bottling operations have sucked the water table dry. And as for those individuals and corporations who have pocketed millions, billions of dollars, profiteering from American munitions that have destroyed lives and property all around the globe, will they be prosecuted for the damage they have caused? Nahhh, don’t even think about it.
But all is not gloom and doom in the corridors of the law. There are some bright flickers on the intolerability meter.
Federal District Judge Reggie B. Walton (himself a George W. Bush appointment) sentenced Scooter Libby to 2 ½ years in prison and publicly stated that Libby had “failed to meet the bar” of the high level of respect required of public servants. Time will tell whether Mr. Libby’s friends in high places get him pardoned before he trades Brooks Brothers for an orange jump suit2. But it’s encouraging, nonetheless, to recognize that some judges, like the Honorable Reggie B. Walton, are, indeed, able to administer justice without (so far) kowtowing to political patronage.
There have been other instances of appropriately recognized intolerable behavior. In Ali al-Marri v. Commander Wright, Consolidated Naval Brig, the Fourth Circuit Court of Appeals held on June 11, 2007 that the President does not have the authority to strip a person of constitutional rights merely by labeling him an “enemy combatant.” This is good news even though the 2-1 split decision is likely to be appealed to a higher court. An additional bright flicker: former congressman Randy “Duke” Cunningham is now doing eight years in prison for his conspiracy to commit fraud, bribery and tax evasion3. Unfortunately, the attorney who helped nail Duke Cunningham, Carol Lam, was one of those federal prosecutors forced out of their jobs, apparently because United States Attorney General, Alberto Gonzales, considers the prosecution of political crooks and cronies to be another offense that cannot be tolerated in our society4.
Messrs. Libby and Cunningham should account themselves lucky that they committed their crimes in the United States. In Japan, Toshikatsu Matsuoka, the Minister of Agriculture, apparently hanged himself hours before his appointed grilling by parliament about corruption in the seamy government of Prime Minister Shinzo Abe.5 On the Asian mainland, in China, a court has meted out a death sentence to Zheng Xiaoyu, The former government minister of Food and Drugs was condemned to die because he had sold out the public’s interest in safe food and medicine in return for bribes. Although I generally oppose the death penalty, one wonders: would the USDA so actively suppress testing for Mad Cow Disease; would the FDA so complacently approve deceptions as labeling irradiated food as “cold pasteurized”; would the FCC so compliantly approve corporate media’s consolidation — would any of this happen if death was the penalty for succumbing to industry lobbying or for dereliction of public duty?
It is a confusing, contradictory situation, with charges and sentences ranging all the way from non-existent to extreme. Ordinary people really want to know: how does the legal system decide what behavior in our society is intolerable, if committed by one person, but worthy of silent pats on the head, clemency or executive pardon, if committed by another person? For most ordinary people aggrieved by the political and economic system that dominates the United States, the road to justice is a twisty, pot-holed path through a dark forest, expensive to travel, full of unexpected tolls, quicksand, and legal cul-de-sacs, all creeping along toward an uncertain destination. For “important people”, however, the road to justice seems to move at a different speed and in an altogether different direction.6 Thus, the low level perpetrators of the depravities at Abu Ghraib were prosecuted and sentenced, but not the Secretary of Defense, his toady generals or the doctors and psychologists who facilitated it. Lt. Ehren Watada, refuses an illegal order to deploy to an illegal war and he is prosecuted; yet those who obey that same illegal order and who wreak mayhem in its service, are funded and encouraged with the cry of “Support Our Troops!” How does the legal system determine what is tolerable and what is not?
The answer is that, individually, there are judges, lawyers7 and prosecutors of impeccable integrity and courage throughout the country, regardless of their political party affiliations, just as there are, more or less, equal numbers of the opposite cast. Institutionally, however, the justice system’s deck is stacked, deliberately so to preserve the status quo, to maintain in their fixed orbits and relationships the constellations of commerce, class and political-economic power.
Historically, it was the English Court’s role to enforce the King’s authority and domains. Similarly, the American legal system was created to provide a bulwark against democratic (and therefore “demagogic”) tendencies and to provide a bulwark for the protection of commerce and property. Shay’s Rebellion (1786-87) and the Whiskey Rebellion (1791-94) are early examples of the courts working in tandem with the executive branch to squelch, violently if necessary, all non-passive resistance to government oppression.
Take the case of slavery. The English High Court, in Somersett’s Case in 1772, declared slavery morally repugnant and illegal, four years before the Declaration of Independence.8 By contrast, the American Constitution institutionalized slavery in 1788 as part of a shabby political-economic accommodation. The US Supreme Court not only did not abolish slavery when it had the chance, but it gave it the Court’s blessing in Dred Scott vs. Sandford in 1856. It took John Brown’s “terrorist raid” on Harper’s Ferry and the Civil War he precipitated to finally end the legal basis for an abhorrent economic institution that the Supreme Court never had the courage nor the wisdom nor the moral fiber to stamp out.
Among those socially conscious in the 1960s, there is a nostalgia for the exceptional years when Justices Thurgood Marshall and William O. Douglas sat on the Supreme Court and championed the causes of social justice. However, the day of the mythical “liberal” Supreme Court was but a thin slice of time sandwiched between prior and later court decisions like those that invalidated restrictions on the use of child labor,9matters of anti-labor bias. that endorsed the power to intern ethnic Americans in the name of national security,10 and that validated the appointment, rather than the election of the President.11
Thus the 1960s might only have been an aberration coincident with years when oil was plentiful and cheap, when middle class standards of living were rising and not falling, when Americans knew no bounds, and when the door to Justice for the oppressed, women and people of color seemed to crack open just a little bit.
But that was then, this is now. The apocalyptic horsemen of resource depletion, rampaging world capitalism, climate chaos, and wars without end stalk the land; and that courthouse door once slightly ajar is now barred, bolted and guarded by a reactionary Cerberus of relatively young, doctrinaire Supreme Court jurists-for-life, nominated by royalty wannabes and confirmed by compliant “bipartisan” politicians who thought (if they thought at all) that the integrity of the third branch of government was not worth the filibuster.
For better or worse, many of the most significant issues concerning personal rights and liberties, social equality, labor, the environment, property rights versus civil rights, police powers, war powers, democracy versus aristocracy, wend their way upward to that same US Supreme Court where “law” is the candy wrapper for a policy of cultural, political and social counter-reformation. Inexorably are the modest judicial gains of the 1960s being deliberately chipped away, and despite the best efforts of those earnestly seeking justice in the highest court of the land, they seem often to be tilting at windmills.
So at this Last Bus Stop of American Justice, have we found the place where the most intolerable legal offenses against our society occur? Is this where idealism and hope are disappointed, where all good causes finally go to die? Perhaps, but it is a salutary revelation to know that not all things can or will be solved in the courthouse. The legal system is simply too grindingly slow, too finely focused and too atavistic to effect the fundamental changes that current crises cry out for.12 Of course, those who pursue justice in the courts should continue to so for the simple reason that, sometimes, good things can and do come of it. Nevertheless, the legal tack can be only one of many, and, if history is any indicator, it certainly is not the most likely to make the most profound changes. Electoral politics, street protest, petitions to Congress and letters to editors also fit into the same category of well-intended hard work that usually yields less than the effort expended on it.
The truth is that the most intolerable offense in our society is not the theft of proprietary soda formulas, nor lying to a grand jury, nor even the gradual unwinding of good case law from the ’60s. The most intolerable offense in our society is delegating to others — be they lawyers, judges, politicians or the media — the responsibility for changing our world. As Henry David Thoreau said in his essay “Civil Disobedience”: “Cast your whole vote, not a strip of paper merely, but your whole influence.”
There is no secret formula. The impetus for change has to effervesce up from below. Like a shaken can of cola. Like a shaken can of cola.
- The US has funded and encouraged Ethiopian troops to occupy Somalia, disrupting the social stability that had finally been achieved by the Islamic Courts Union. The US is also, directly or through proxies, providing arms to Fatah in occupied Palestine so that it can fight with Hamas, and providing weapons to “terrorist” groups in Lebanon to undermine Hizbollah. In Dafur, the US (and whoever is funding the mega-campaign for the disingenuous “humanitarian” exercise) is determined to prevent the outbreak of peace by fanning the flames of sectarian war. Genocide? No, it’s all about oil. [↩]
- AIM activist Leonard Peltier will not be pardoned. Nor will Gary Tyler, imprisoned in the Louisiana State Prison for a murder he did not commit. But many government officials have been pardoned. President George H. Bush pardoned a half dozen in one fell swoop to cover up the Iran-Contra arms for hostages scandal. In cases like the Iran-Contra conspirators, as in the case of Mr. Libby, the purpose of the pardon is demonstrate to others who might be criminally indited how those who lie in support of one’s conspirators in crime will be protected from any serious repercussions. It is an extension of the Mafia law of omerta. [↩]
- Note that the length of Cunningham’s prison sentence is about the same as the Cola culprit received. [↩]
- Although the Republicans have acted shamefully in firing state attorneys general who would not do their bidding, it is naïve to regard this as purely GOP behavior. Both halves of the ruling party do this type of thing. The reason why Democrats have seized this particular issue is because it is a scandal — unlike the War on Iraq — that does not have any Democratic fingerprints on it. [↩]
- The ruling party in Japan was extremely annoyed that Mr. Matsuoka was prepared to bare all of his (and his party’s) transgressions in testimony before Parliament. His suicide (or was he helped along in his decision to “save face”?) occurred only hours before he was scheduled to testify. Another corrupt businessman involved in the same bribery scandal, Shinichi Yamazaki, committed suicide the very next day by “jumping” out of his condominium, or so it was reported. [↩]
- Who can resist comment on the jailing of Paris Hilton? Bobble-heads like Ms. Hilton are not normally worth serious attention. However, it is fascinating to observe how easily the media can distract the public from a) the implications of the felonies committed by Mr. Libby in furtherance of the cover-up of a political hatchet job to b) the totally insignificant traffic offense committed by Ms. Hilton. Personally, I take no Schadenfreude in jailing the young and feeble-minded, even when they are rich and bratty like Ms. Hilton. Perhaps the neo-con PR onslaught depicting the Passion of Scooter Jesus can be turned on its head by a counter-campaign: Pardon Paris! Lock Up Liar Libby! [↩]
- The pro bono defense attorneys who represent the forgotten souls of Guantanamo are among the heroes of this profession, as are the military defense lawyers who dare to stick out their jaws in JAG judges’ faces. [↩]
- Of course, this happened as England was evolving from a purely agrarian society into an industrial one, as “free labor” was becoming the new beast of capital’s burden, and as the tentacles of empire were beginning to wrap around new overseas resources, markets and, yes, colonial slave-substitutes. Although slavery itself was banned in 1772, Parliament did not eliminate the slave trade until the early 19th Century. [↩]
- Bailey vs. Drexel Furniture Co., 1922. For more references to [↩]
- Korematsu vs. United States, 1944. [↩]
- Bush vs. Gore, 2000. [↩]
- Sometimes individuals ultimately “prevail” after years of civil rights litigation. Too often, however, the monetary damages awarded to successful litigants pale in comparison to the harm that cannot be recompensed. Thus, Mr. Korematsu was eventually “exonerated” in 1998 for his “crime” of not assenting to imprisonment in a Japanese-American concentration camp during WWII. But that did not occur until decades after the government accomplished what it wanted to do: lock up West Coast Americans of Japanese ancestry for the duration of the war. The $20,000 damages eventually paid to Japanese Americans cannot repay them for the lost years of freedom or for their lost farms and homes. Worse, the original Supreme Court case that ruled against Mr. Korematsu, although founded on false evidence presented by government prosecutors, continues to be “good law” that is cited even today in support of the current pograms against Muslims, Asians and people of Arab, African, Caribbean or South American ancestry. Likewise, if those incarcerated by the US in its myriad secret prison sites are ever released, or, at least, ever charged and tried, it will have come too late to spare them the pain of torture, too late to mend the holes in their lives, too late to salvage the myth of due process of law. [↩]