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justice
Don’t Let the Supreme Court Get the Last Word on Housing Justice
New laws criminalizing the state of being homeless will not pass, and existing laws will not be retained, if we the people reject them.
Jun 29, 2024
Yesterday’s Supreme Court decision in City of Grants Pass, Oregon v. Johnson was an abomination. Justice Sonia Sotomayor had it right when she said that criminally punishing people for sleeping outside when there is no shelter available to them is “unconscionable and unconstitutional.”
Alas, six of her fellow justices disagreed, ruling that fining and imprisoning people just because they are homeless does not violate the Eighth Amendment prohibition against cruel and unusual punishment. So these vile, counterproductive responses to our housing crisis have been held to be constitutional.
But the second half of Justice Sotomayor’s verdict is alive and well: Punishing people because they are unhoused is unconscionable. The Supreme Court failed to stop this hateful practice, but we can.
Laws that imprison people for being unhoused are just as unconscionable today as they were before the Supreme Court ruling.
In my work teaching a law school clinic where we defend people facing eviction, and in research and writing as part of a book project, I have spent the last few years researching and writing about inspiring housing rights campaigns across the country.
Tenant unions, religious groups, civic organizations, labor unions, and others have come together to lobby local officials in Louisville, confront corporate landlords in North Carolina, run candidates for office in Kansas City, commit civil disobedience in Connecticut, convene phone banks in Tacoma, and fight like hell in dozens of other communities, too. They have won victories like bans on cold-weather and school-year evictions, referendums creating huge boosts in affordable housing funds, ceilings on rent increases, and protections against unlawful evictions.
This growing movement demands the fulfillment of the human right to housing. The people in this movement, not a half-dozen unelected, lifetime-appointed elites in black robes, will have the last word on how we treat our unhoused sisters and brothers.
That was always going to be the case, no matter how the court decided Grants Pass. As a practical matter, the Supreme Court majority only ruled that anti-homeless legislation is allowable—not that it is advisable, much less required. New laws criminalizing the state of being homeless will not pass, and existing laws will not be retained, if we the people reject them.
More broadly, transformative justice always comes from the bottom up, not from court decisions handed down from on high. Compare the anti-abolition movement to the Dred Scott decision sanctioning slavery, the civil rights movement to the Plessy v. Ferguson decision that enshrined “separate but equal,” the labor movement to multiple anti-worker decisions like the Hammer v. Dagenhart ruling that struck down laws prohibiting child labor.
During one of my visits to the amazing advocates of the Louisville Tenant Union, I heard one of the tenants tell her story. She and her children had not only been unlawfully evicted, she was wrongly arrested and imprisoned in the process. Judges did not save her, and law enforcement certainly didn’t. Instead, she found support and justice when she joined together with her fellow tenants.
“The powers that be told me I was crazy, but that’s harder to say when I am standing next to 100 other people who have gone through the same thing,” she said. “We are the ones to keep us safe.”
She is right. Laws that imprison people for being unhoused are just as unconscionable today as they were before the Supreme Court ruling. Together, we can stop them. Together, we can keep all of us safe.
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Waging Peace in an Uncertain World
Discovering solidarity and joint action on this International Day of Peace.
Sep 21, 2023
Every year, the International Day of Peace is observed around the world on September 21. Based on a declaration in 1981 by the United Nations General Assembly, this day is devoted to strengthening the ideals of peace and designated as a day of nonviolence and cease-fire. This notion is rooted and anchored in the United Nations Declaration of Human Rights, which clearly states, “Everyone has the right to life, liberty, and security of person” (Article 3), and yet, we are left wondering how this will be actualized in our worldly affairs both individually and collectively.
UNESCO cogently calls out the importance of peacebuilding in our time of unprecedented challenges:
New forces of division have emerged, spreading hatred and intolerance. Terrorism is fueling violence, while violent extremism seeks to poison the minds of the vulnerable and young. In the poorest and least-developed parts of the world, climate-related natural disasters are compounding existing fragility, increasing forced migration, and heightening the risk of violence.
Through social media, we have seen a cheapening and commodification of words, phrases, and concepts. Peace has become a marketing campaign for some, and for others, it is now conflated with ideological arguments that diminish meaning and capacity for change. The level of extremism we are witnessing today in many places of the world is reminiscent of a not so recent past, in which demagogues, fascists, extremists, identitarian youth movements, and eugenics all held hands together. The promise of their future was one of no diversity, no elderly or disabled, no poverty, no dissent. Instead, they offered up a sterile world, in which there would be total war to accomplish their aims.
Today, we are sadly at the same precipice. There is a war in Ukraine, despots and despotic regimes that use slave labor and traffic men, women, and children for exploitation. We have extremists who are committed to agitation and even violence, and our youth are influenced and emotionally agitated more and more through social media and substance abuse. In the midst of these human realities, there also exist the realities of nature, which include dramatic force-majeure events. Under this burdensome weight, one can easily be overwhelmed by the enormity of the challenges that each of us faces, and, as UNESCO clearly states, “The barriers to peace are complex and steep—no one country can solve them alone. Doing so requires new forms of solidarity and joint action, starting as early as possible.”
Each generation has a responsibility to the next in moving us toward non-violence, liberation, and justice.
What does solidarity and joint action look like? The pedagogical principle of empathy may best be captured by the African principle of “ubuntu” (Omeje, 2008). Ubuntu is a humanistic philosophy (which has no English synonym) and connotes “collective personhood” and is best captured by the Zulu maxims: “A person is a person through other persons” and “my humanity is inextricably tied to your humanity.” It is an overarching, multidimensional philosophy that invokes the idiom and images of group cooperation, generosity, tolerance, respect, sharing, solidarity, forgiveness, and conciliation (ibid., p. 89).
To engage an empathic pedagogy requires us to move beyond our binary thinking of us versus them and embrace the complexity of human thought and experience. We also need to actively look without bias through new perspectives and suspend personal judgment by approaching something with a willingness to understand (Millican et al, 2021).
As we move forward into the fourth industrial revolution with current and looming existential challenges, we cannot afford to barter away our ethics as a human community to the seductions of our own self-made technology. This is not to say that technology does not have a place, for it most certainly does and will continue to do so; however, the ethical considerations as it relates to our planetary survival and justice are even more critical. For this reason, we are now compelled to really question our reliance on instrumental logic and must begin to advance from the 20th century post-enlightenment turn in modernity into a post-human world that centers planetary interrelatedness. This will be part of our human journey together, perhaps even our errant into the wilderness. It is our destiny to take this journey and to take it together. How we do that will require great fortitude, a willingness to see ourselves as the extended kin that we are, and to wrestle with difficult questions, not one another. This is a spiritual reawakening more than anything else.
For those of us who work in and with community, this will be the work of our lifetime, and the International Day of Peace should be a time of reflection, repentance, and reconciliation. It should also be a time for action—we should not only have a “cease-fire” on all global violence, but also in our interpersonal relationships. We should take steps to reconcile where we may have fallen short, misjudged, or harmed in some way another individual and find a way for individual and community-wide reconciliation.
Perhaps it is auspicious that the 2023 International Day of Peace falls between Rosh Hashana (the Hebrew calendar new year) and Yom Kippur (the day of atonement)—a time to reconsider where one has missed the mark, fallen short, or done harm to another (knowingly or unknowingly). It is a time for reconciliation, where the powerful lessons of forgiveness and mercy become central. There are many interpretations and lessons to be learned from this, but peacebuilding is not a one-day affair, as it requires a lifetime commitment to human justice. It will take extreme perseverance as the fruits of peacebuilding may not happen in our lifetime. It will require us to always renew the covenant that says we stand committed to one another and to all creation. In the Jewish tradition, there is a wonderful passage from “The Ethics of the Fathers” that should give us strength and agency. The passage states that in our striving toward peace and justice “you are not required to finish this work, yet neither are you permitted to desist from it.”
In considering our work in social justice and peacebuilding, this statement is perhaps the most relevant and captures the long-enduring spirit that is required to heal a world out of balance. It is a beautiful concept in which you are not obligated to finish the work of perfecting the world today, but neither are you permitted to do nothing toward that goal. Each generation has a responsibility to the next in moving us toward non-violence, liberation, and justice—and to think with an Indigenous mindset of the seven generations to come. What a beautiful and powerful gift we have—to live life in the fullness of moving us toward perfection in the recognition of our shared humanity and the potential of our genius.
As educators, we understand that the world stands on justice, truth, and peace, and peace is where the true beauty of humanity rests in all its perfection. Perhaps this is the highest calling for all of us as educators. We have chosen a path that can and should open hearts and minds to bring healing into those dark spaces of the human experience. Erich Fromm calls the art of loving in which love is not a feeling, but rather love is a practice that is our only path forward to actualize peace. Let us consider this day of International Peace a day where we recommit ourselves anew to the values that higher education and other sectors offer up to the world, an opportunity to develop perspective taking. May we discover a way of seeing the world from a new and different aperture and exhibit the energy and zeal to actively seek justice and engage the intractable issues of our time.
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Trump Is Being Treated Unlike Other Criminal Defendants—Better
Those looking for fairness in the criminal justice system may wish to see Trump treated like an ordinary criminal defendant. But instead, what if everyone else accused of a crime were treated more like Trump?
Aug 09, 2023
Former President Donald Trump often complains that he is being treated unfairly by the prosecutors charging him with crimes.
Trump is now the subject of three federal and state criminal cases—and it is true that he is being treated unlike other criminal defendants.
The prosecutors are treating Trump a lot better than the average criminal defendant.
Most criminal defendants are just arrested and taken to jail, where they may sit for months or even years while they await trial, unless they plead guilty.
We are law scholars who have defended clients in criminal and civil cases, and we wish that our clients received the advantages that prosecutors are giving Trump.
Early Warnings
Trump’s unique treatment began before he was even charged with any crime. First, he had ample warning of the investigations because he got letters from the Justice Department saying he was a target of each investigation. These letters were sent to Trump a few weeks before his two federal indictments in June and July 2023.
Especially in white-collar cases, criminal defendants sometimes receive target letters that warn them of an impending indictment and sometimes give them the chance to testify.
But target letters generally lack detail and are far from the norm across all criminal cases. Target letters are not legally required. The Justice Department spells out various reasons why its prosecutors do not need to send them, including risks of a defendant destroying evidence or endangering witnesses.
The Difference Freedom Makes
After Trump was charged with crimes in each of his three pending cases, his lawyers negotiated dates when he could submit to authorities for processing.
And after Trump’s brief arraignments in court, judges found he was not a flight risk and released him.
Most criminal defendants are just arrested and taken to jail, where they may sit for months or even years while they await trial, unless they plead guilty. Three-quarters of federal criminal defendants are locked up to await trial.
Defendants in courts across the country plead guilty to crimes even if they are innocent, in part because pleading guilty gets them home sooner.
It is hard for detained defendants to recover lost wages and from the humiliation they experience while in jail, even if they defy the odds and later win their case.
Pretrial detention has also been shown to result in a higher chance of being convicted and receiving longer sentences.
Indeed, defendants in courts across the country plead guilty to crimes even if they are innocent, in part because pleading guilty gets them home sooner. For some defendants, the pretrial detention is longer than their actual punishment will be, so pleading guilty resolves the case with credit for time served. But the stain of a conviction stays on their record forever.
Benefits of Time and Freedom
Because Trump is not sitting in jail, he is well positioned to ask that his trials be postponed far longer than would an ordinary criminal case. Federal law generally requires “speedy” trials, which are considered a right to protect defendants.
Trump got a lengthy delay, though it’s not as long as his legal team requested. Trump asked that his classified documents trial be held after the November 2024 election, but his trial is scheduled to begin in May 2024. Federal prosecutors pushed for a December 2023 start date. These kinds of compromise decisions are common in legal decisions like deciding court dates.
This timing gives Trump’s lawyers nearly a year to prepare arguments in his favor. They can easily meet with their client to do so, something that would be difficult if Trump were incarcerated.
Most criminal defendants face a very different experience.
For example, after federal prosecutors charged Air Force reservist Jack Teixeira in June 2023 for revealing classified information, he asked for provisions similar to those that judges made for Trump.
He argued that he, too, should be released to await trial. Teixeira did not have Trump’s wealth and easy ability to flee.
Nonetheless, the court determined that Teixeira poses a national security threat and must remain in jail. The case is still pending.
Other criminal defendants spend years in jail before pleading guilty or perhaps going to trial.
A Treasure-Trove of Information
The differences do not stop there.
Prosecutors in all three of Trump’s cases have explained, in great detail, the allegations against him.
The classified documents indictment recounted several text message conversations between Trump aides and transcribed a conversation in which Trump disclosed the contents of classified documents and acknowledged their classified status.
Prosecutors often withhold documents until the eve of trial or wait until after key witnesses have testified, all of which is legal.
The indictment regarding Trump’s alleged plot to overturn the 2020 election results was 45 pages long and included a play-by-play description of his plan.
Early in the documents case, federal prosecutors publicly disclosed key information about their investigation that could have helped Trump’s legal defense.
In contrast, criminal defendants typically do not know the precise allegations facing them this early in a case.
Prosecutors often withhold documents until the eve of trial or wait until after key witnesses have testified, all of which is legal. In some cases, they fail to disclose the information.
The Other Side of the Coin
Prosecutors’ decision to treat Trump differently from other criminal defendants could serve a few purposes.
The Justice Department is prosecuting a former president. That puts the department in a delicate, high-profile position, where it has the “Herculean task of putting an ethical rope through a needle,” as one former federal prosecutor has said.
So, prosecutors’ detailed indictments help inform the public about the breadth and depth of the allegations made against Trump.
Their approach could add legitimacy to the prosecution’s and the Justice Department’s goal of maintaining accountability and independence while countering Trump’s perception that the cases are “a witch hunt” and rooted only in politics.
What Would Fairness Look Like?
Those looking for fairness in the criminal justice system may wish to see Trump treated like an ordinary criminal defendant. But instead, what if everyone else accused of a crime were treated more like Trump?
In that world, perhaps most importantly, pretrial detention would be used quite sparingly and would not provide leverage to coerce guilty pleas. People who are charged with a crime have not been proven guilty, and pretrial detention inflicts serious harm on defendants, their cases and their loved ones.
Prosecutors would tell defendants from the earliest stage of the case the detailed allegations against them so that defendants can prepare a meaningful defense.
The U.S. legal system aims at the truth, and robust procedures serve that goal.
In our view, the more thorough the judicial process is, the more confident people can be that it reaches the right outcome—whether the case regards Trump or not. Looking at Trump’s special treatment offers a good place to start in thinking about how the criminal legal system should treat all people accused of a crime.
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