What’s Less Equitable Than Slavery? How About Prisons?

An NCFCA LD resolution looked for clash between freedom and equity: “Resolved: In the realm of economics, freedom ought to be valued above equity.”

The U.S. Supreme Court struggled with the clash between freedom and equity in the case of the long-established United States institution of slavery. The equity then was the equity in the legal ownership of human beings by slaveowners. Students debating the resolution choose the first definition below (these are from the Apple Dictionary, Version 2.2.1):

1. the quality of being fair and impartial: equity of treatment.

2. the value of the shares issued by a company: he owns 62% of the group’s equity.

3. the value of a mortgaged property after deduction of charges against it. 

The Supreme Court in 1857 handed down its decision in the Dred Scott case: Congress lacked the power to prohibit slavery in the territories (with the Missouri Compromise). So it was left to the Civil War to end slavery. The Supreme Court could have reached to a higher law, Natural Law, to insist people have a natural right to self-ownership, and cannot justly be equity, that is, cannot be legal property owned by another person.

Slavery might have been ended, or “sunsetted” in other ways, as it was in other countries around the world. In the U.S. the non-slave states were gradually nullifying the Fugitive Slave Act, as juries were, county by county, refusing to convict African-Americans charged with being runaway slaves. This frustrated judges and prosecutors who instructed juries to judge the facts rather than the law. But more and more everyday people had come to believe that slavery was unjust, and they understood that juries had long been empowered to refuse support for unjust laws.

Freedom of speech and religion also turned on protection by juries:

In 1670, Quakers William Penn and William Mead were prosecuted for preaching to an assembly. The government did not approve of the Quaker religion and made laws against public assembly. At the end of the trial, the judge instructed the jury to return a guilty verdict. Four jurors, led by Edward Bushell, refused to return the guilty verdict. The judge then ordered the jury locked up until they returned with an acceptable verdict, the one he had asked them to return. For two days the jury refused to return a guilty verdict and the judge ended the trial. As punishment, the judge ordered the jurors imprisoned until they paid a fine. Bushell refused and spent months in jail. He was eventually released after his habeas corpus petition prompted the Court of Common Pleas chief judge to rule that a jury can nullify the law and forbade judges from punishing jurors for their verdicts. [Source]

Concern with injustice in the U.S. today, many critics point to the criminal justice system and the high percentage of African-Americans in jail or on probation. More African-American men are in U.S. prisons now, notes a 2012 Guardian article, than were enslaved in 1850.

Many pro-market foundations and institute are working to reform the criminal justice system and decrease the prison population, especially those convicted of nonviolent crimes.  Here is the Right on Crime website.

It is worth noting that those accused of crimes in the U.S. no longer have access to jury trials. In over ninety percent of criminal cases (maybe 97%) don’t have access, or easy access to jury trials. In theory they do, but prosecutors threaten to charge suspects with much stiffer crimes and longer sentences if a trial is demanded.

Can we trust local prosecutors and courts to manage criminal justice fairly without juries and other traditional and Constitutional safeguards? Well, apparently not in Orange County, California:

The sunny Southern California county with a population surpassing that of nearly half the states has a Republican district attorney, Tony Rackauckas, and a big problem on its hands: Its entire prosecutorial apparatus — all 250 lawyers in the district attorney’s office — have been disqualified from participation in a high-profile capital-murder case following revelations that the office colluded with the Orange County sheriff’s department to systematically suppress potentially exculpatory evidence in at least three dozen cases, committing what legal scholars have characterized as perjury and obstruction of justice in the process.  [National Review Online source.]

State and federal crime labs are also mismanaged, leading to many unjust convictions. The FBI’s Forensics Disaster:

The FBI hair comparison experts were found to have made “erroneous statements” in about 96 percent of the studied cases in which “examiners provided testimony used to inculpate a defendant at trial.” In 33 cases, errors were found in the analysis of defendants who were subsequently sentenced to death. Of those defendants, nine have already been executed, and five others died while on death row.

Consider too that claimed “proof” from hair analysis could be used by prosecutors to convince the accused to plead guilty without a trial.

So, for both the injustice of slavery in America’s past, to the apparent injustice of today’s criminal justice and prison systems, jury trials are a key feature for protecting the accused, and even with conviction, for insuring the punishment fits the crime.

I often make this point to homeschool families.  Homeschooling was long illegal in most states. And homeschooling could be made illegal again through further regulation or outright ban. Legislatures offer limited protection for minorities. Constitutions limiting legislative powers are the next line of defense.

But when Constitutional limits on legislative power are ignored, juries are the next line of defense. A family brought to court and charged with homeschooling without a license, may or may not have access to a jury trial. If prosecutors threaten them with long prison sentences for insisting on a jury trial, some plea bargain might seem the safer course.

Supreme Court justice Clarence Thomas cites abolitionist Lysander Spooner, discussed in this Reason book review:

In his concurring opinion in the landmark gun rights case McDonald v. Chicago, Supreme Court Justice Clarence Thomas offered a sweeping account of how the anti-slavery movement laid the foundations for the 14th Amendment, which declares, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” As Thomas explained, the authors and ratifiers of the 14th Amendment wanted the recently freed slaves to enjoy all of the rights they had long been denied, including the rights protected by the Second Amendment. The evidence he cited included the writings of the Massachusetts abolitionist Lysander Spooner (1808–1887), who argued that among its many crimes, slavery violated the “natural right of all men ‘to keep and bear arms’ for their personal defence.”

It was a rare high-profile acknowledgment of Spooner. Although mostly forgotten today, he was a key figure in the abolitionist movement and one of the most innovative legal and political thinkers of the 19th century. At a time when abolitionists such as William Lloyd Garrison denounced the Constitution as a pro-slavery “covenant with death and an agreement with hell,” Spooner responded with a powerful book titled The Unconstitutionality of Slavery (1845), making him a hero to the anti-slavery Liberty Party and a major influence on the abolitionist leader Frederick Douglass. A champion of property rights and free trade, Spooner also argued that banking should be completely unregulated and that intellectual property could be held “in perpetuity.” An individualist anarchist and tireless foe of government overreach, Spooner published a brilliant defense of jury nullification, argued that victimless crime laws should be taken off the books, and eventually held that the Constitution itself “has no authority” over anyone.