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The "Honorable Men" Defense
"The noble Brutus hath told you Caesar was ambitious:
If it were so, it was a grievous fault;
And grievously hath Caesar answer'd it. Here, under leave of Brutus and the rest,--
for Brutus is an honorable man.
So are they all, all honorable men."
--William Shakespeare, Julius Caesar; Act III; Scene II.
For jailhouse lawyers and other prison litigators, the 'honorable men'' defense arises far too frequently in prison litigation.
More often than not, it arises, not on the motion of the party defending against the suit, but sua sponte, by the Court itself, as a statement of affirmation of the government's representatives.
Say a plaintiff charges a state officer with violating a "constitutional guarantee" claimed within the articles or amendments of the U.S. Constitution, and after a hearing or trial, the claim is found to be true. In such an instance, should a court describe the violators as 'honorable men?"
If a court does so, does it protect the Constitution, or the state official who has violated it?
Is it a Court's duty to defend the state's interests, or to defend the Constitution from violation?
These are not rhetorical questions.
This very thing happened in Jamal v. Price, where the plaintiff argued that the government, through its prison officials illegally and unconstitutionally opened, read and copied his legal correspondence, lied about it, and did it repeatedly thereafter.
Further, the suit charged the state punished this writer for writing Live from Death Row (Addison-Wesley, 1995), thus punishing one for the practice of his alleged First Amendment 'constitutional rights'' to freedom of the press, and free speech.
The Court, in a remarkable display of judicial solicitude, described the state prison officials as "conscientious and scrupulous persons" and goes to some lengths to disassociate this government from some seen as repressive:
"This is the United States of America; it is not Germany in the 1930's and '40's. Persons do not come before our criminal justice apparatus only to disappear im nacht und nebel, as into the night and fog. This is not the Soviet Union; people are not swallowed up in some vast gulag to reappear, or not to do so, randomly. In this country convicted criminals are sentenced to prison, or, as in this case, to death; but they are not stripped of all their rights; and they do not disappear." (Id., SL., OP., 3)
From whence springs this discourse?
Why refer to Nazi Germany or Stalinist Soviet Union, in a case where an African-American prisoner charges the contemporary state with violating his alleged First Amendment "rights" of free speech?
(Interestingly, the Court chose to refer to the 1930's rather than the more contemporary, white supremacist repression visited upon the Black majority under the apartheid regime in South Africa for the better part of this century!)
In logic, the principle of extremis probatis, praesumuntur media (extremes being proven, intermediate things are presumed) is sometimes utilized by creating a contrast that really isn't contrastable.
The writer, being neither German Jew nor Russian dissident, cannot cite to those experiences as touchstones for the present, and any reference to them can only serve to mislead readers from the repressive realities of the American present.
Indeed, who among us can honestly deny the naked state repression visited upon Black people in this nation, in her prisons, in her suburban state bantustans (laughingly called "correctional" institutions)? Who can honestly argue against the proposition that the much-ballyhoed 'War on Drugs' is but a thinly-disguised War on the Black Poor?
Moreover, the references to Nazi Germany and the Soviet Union don't acquit the U.S., for in both instances, the forms of "law" were met. The Nazi holocaust was a legal holocaust; as was much of Soviet repression--statutes were passed, and genocide was legalized!
The German-Soviet references were but oblique judicial responses to the horrific truths chronicled in Live from Death Row, and therefore amounted to a judicial book review!
How else can one interpret it?
Not content to decide constitutional rights, the Court launches into a defense of the status quo, of the reigning sociopolitical order, as 'not Germany,'' nor the Soviet Union.
Of course not. It is the United States, circa 1990's--and therein lies the rub.
The United States--the prisonhouse of nations, where, at latest count, over 1.6 million men and women were encaged; where the state bombs and maims its alleged citizens with criminal impunity (witness the MOVE massacre of May 13, 1985); where men and women are encaged for their social, political and spiritual beliefs (ex., the MOVE 9, Geronimo ji jaga [ne Pratt], Leonard Peltier, Dr. Mutulu Shakur, Ray Luc Levasseur, Sundiata Acoli, Zolo Agona Azania, Marilyn Buck, Sheik Omar Ali Abdul Rahman [convicted due to a series of sermons preached in a public mosque!], et al.).
This United States which waged naked genocide against the indigenous peoples of the Americas, and called it Manifest Destiny; which wiped out more millions than its cousin, Germany.
It was in this United States that the writer was punished for writing, despite the claims of the First Amendment.
Prison officials, although found to have lied on the witness stand, are nonetheless presumptively 'honorable men," even as the Court found:
" ... [T]he decisions to deny plaintiff media interviews were first made immediately after plaintiff's decision to publish his book was communicated to defendants [DOC counsel] Horwitz and [prison warden] Price. These decisions continued, with a variety of purported justifications, for several months. These purported reasons are demonstrably false." (Id., SL., OP., p. 56)
It was precisely these purported reasons that were claimed by prison officials on the stand!
But, alas -- "So are they all, all honorable men."
Inherent within the system is the bias of the status quo, the preservation of the existing order, and whatever uncovers the horrific dungeons, as did Live from Death Row, is seen as disfavored.
In American prisons, men are tortured, women are raped, captives are poisoned, and injustice is ubiquitous. Here, families, psyches and souls are ripped asunder, all administered by 'honorable men.''
To write about such legal evils ist verboten.
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