Legal Commentary

The real message of the Gates affair

By Tom Kirkendall

Despite America's dubious legacy of exercising state power to oppress minorities, that legacy really was not the most important dynamic in play in regard to the improper arrest of Harvard professor Henry Louis Gates.

Rather, the real issue here is the increasing arrogance of America's governmental to condone arrest of citizens as punishment for non-criminal behavior that police or prosecutors simply don't like.

Interestingly, as Alice Ristroph explains, the judicial acquiescence to this increasing problem has Texas roots. Gail Atwater was an Austin-area soccer mom who got into it with police officer and was arrested for a seatbelt violation, a "crime" that calls for no jail time. Atwater fought the charges, but the U.S. Supreme Court held in a 5-4 decision (what were Justices Souter, Kennedy, Scalia, Thomas and Rehnquist thinking?) that police officers may arrest citizens even for perceived offenses that call for no jail time. In short, the Court concluded that the "gratuitous humiliations" that the police officer imposed on Atwater were within the scope of the officer's discretion. Thus, Sergeant Crowley's exercise of power to put Professor Gates through the same humiliations over a bullshit disorderly conduct charge is protected by the Supreme Court.

Couple the foregoing with America's penchant for increasing criminalization of virtually everything and you have a very troubling trend. As Glenn Loury notes in this NY Times op-ed, "anyone who looks closely into the issue of crime and punishment in America cannot fail to notice that the institutions of domestic security — policing, surveillance, prisons, anti-drug policy, post-release parole supervision — have grown hugely over the past two generations." Similarly, given the expansion of the federal criminal code over the past generation, Radley Balko notes that "you're probably a federal criminal, too." Indeed, the Cato Institute for years has been criticizing what it calls the "overcriminalization of conduct and the overfederalization of criminal law." We already know all about that here in Houston, now don't we?

As I first noted in 2004 in regard to Martha Stewart's conviction on criminal charges, and as I've noted many times over the years in regard to other examples of overreaching prosecutions, Sir Thomas More in A Man for All Seasons alerts us on why we should all be concerned with such increasing judicial deference to the overwhelming prosecutorial power of the state. The context is the scene in which Sir Thomas explains to his wife, his daughter and her fiance why he won't misuse his power as Chancellor of England to arrest his student Richard Rich, despite the fact that Rich is preparing to betray Sir Thomas to Thomas Cromwell and Henry VIII:

Lady Alice (Sir Thomas' Wife): "Arrest him!"

Sir Thomas: "For what?"

Lady Alice: "He's dangerous!"

Roper: "For all we know he's a spy!"

Daughter Margaret: "Father, that man is bad!"

Sir Thomas: "There's no law against that!"

Roper: "But there is, God's law!"

Sir Thomas: "Then let God arrest him!"

Lady Alice: "While you talk he's gone!"

Sir Thomas: "And go he should, if he were the Devil himself, until he broke the law!"

Roper: "So, now you give the Devil the benefit of law!"

Sir Thomas: "Yes! What would you do? Cut a great road through the law to get after the Devil?"

Roper: "Why, yes! I'd cut down every law in England to do that!"

Sir Thomas: "Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down--and you're just the man to do it, Roper!--do you really think you could stand upright in the winds that would blow then?"

"Yes, I'd give the Devil the benefit of the law. For my own safety's sake."

Full post as published by Houston's Clear Thinkers on July 29, 2009 (boomark / email).