THE LIVING LAW

Speech given at the Vision of Justice forum, University of Delaware, October 10, 2002 
by Vivian Houghton 

Good evening.  

I want to start my discussion about justice in Delaware by dealing with the facts of a court case that didn’t occur in Delaware but somewhere else.  

In this case, one man was killed by three other men. Although the murder victim’s wife knew that the murder had occurred, she didn’t tell anyone.  When the authorities later learned about the killing from information given by witnesses, the three men as well as the woman were charged with murder.  Plus, the prosecution demanded that all four of the accused be given the death penalty.  

During the trial, at least nine people testified about the man’s murder.  Two additional witnesses testified that the accused woman, the murder victim’s wife, shouldn’t be held responsible for the crime even if she knew about it but did nothing to stop it or to help the investigators.  These two witnesses said that as an abused spouse who was now financially worse off than she was prior to her husband’s death, she didn’t deserve punishment.  After hearing all the testimony, the court found the three men guilty and sentenced them to death.  The woman was declared innocent.   

This case sounds uncomplicated enough on the surface.  In fact, we can watch the evening news almost any day of the week and hear of such a murder trial and verdict.  Yet the case interests me because this particular trial and verdict occurred almost 4000 years ago in Sumer in southern Mesopotamia.  And yet in spite of how old the case is, we find in it a number of modern attributes.  First, the very fact that there was a court in which a trial could take place seems modern, since in the contemporary world we often think of the idea of justice as a modern one.   Second, at a time that predates feminism by thousands of years, the people deciding this case were able to allow for something that U.S. law only has begun to deal with over the last few decades: the need to consider spousal abuse as a factor in crimes involving family members.  

For those of you who like to think of the law as evolving neatly over the centuries from some beginning point in the distant past until now, the Sumer case should be a warning.  Sometimes today’s criminal justice system isn’t as much of an advance over the past as we think it is.  Sometimes it even falls behind the past.  For Americans, this means that, although at its best U.S. law strives for logic and fairness, sometimes our laws – or their application – aren’t as advanced in terms of logic and fairness as we like to think they are.  In fact, it isn’t always clear that the phrases “logic” and “the law” even go together or that the meaning of  “fairness” is clear.  

Take the case of Willie Sullivan as an example.  Sullivan, 28, was executed here in Delaware in 1999 for the 1991 murder of his former employer, 78‑year‑old Maurice Dodd, who owned a  nursery in Frederica.  Although I personally oppose the death penalty, I have to admit that the law, as law, seems to have been carried out fairly in the Sullivan case: the evidence indicated his guilt and, since capital punishment is allowed in Delaware, his execution was legal.  

Unfortunately, the word “legal,” which seems to us such a simple word, isn’t so simple.  What was legal in 1999 isn’t necessarily legal in 2002, since what is and isn’t legal constantly changes.   The Sullivan case is a case in point, given Sullivan’s below-normal IQ and the U.S. Supreme Court’s decision a few months ago in Atkins v. Virginia that the death penalty can’t be given to a defendant who is judged to be “mentally retarded” at the time of the crime.  This means that Sullivan, put to death in 1999, could not be put to death now.  From this fact we can gather that who the state does and doesn’t put to death isn’t absolute but is rather a matter of the legal fads of the moment.  In other words, the basis for capital punishment, like the basis for most laws, is subject to the chaos of history.  Fanaticism, political grandstanding and hatred of outsiders are just as likely – maybe more likely – to shape death-sentence trends as is clear thinking at prestigious law schools.  This is a far cry from what we like to think of as the law’s logic.  This is the law in real-life mode, the law as an often unpredictable mixture of rationality, emotion and chance.  As a result of all this, Willie Sullivan, with his low IQ and an abusive mother who was an alcoholic both during and after her pregnancy with him, was executed in a year, 1999, when it was legal to execute him.  Today it would not be legal.  Maybe in 6 years it will be legal again.  Who knows?  Such is the law’s existence.  It is a constantly changing, sometimes ungraspable phenomenon – one part logic, one part illogic.  

A good attorney general has to understand this.  The law is our protection from irrationality, but it can also be a product of that irrationality.  The law that suspended the rights of U.S. citizens of Japanese decent during WWII is an example of legal thinking that is the product of irrationality.  Another example is the denial of certain immigrant rights that is going on today as part of the nation’s so-called war on terrorism.  Although laws can be a wonderful instrument of people-protection, they also can be a method of curtailing freedom.  It was, after all, only a few short decades ago that the law was used to deny African-Americans equal access to jobs, criminal justice, schooling, housing and so on.  Unfortunately, today, in Delaware as elsewhere in the country, many of these race-related problems still exist in spite of changes in the law.  

To give you an idea of what I mean when I say that many of these race-related problems still exist, let me just mention a few numbers related social-economic factors in our state.   

• Regarding earnings, black  per capita income in Delaware is only 60% or three-fifths of white per capita income.  

• Regarding employment, the African-American unemployment rate, which is approximately, 8.2%, is more than twice as high as the white unemployment rate, which is about 4%.  

• In terms of property holdings, the rate of home ownership among blacks is 20% less than among whites.  

• Finally, in terms of access to UD, which is the state’s largest institution of higher education, African-American student enrollment hovers at about the 5% level.  The number of black  faculty is even lower percentage-wise. These numbers have barely changed since 1982 when the federal Department of Education cited UD for promoting a type of educational racial segregation.  

Some of you might ask what such numbers have to do with the law.  Well, the answer to that is simple: these numbers provide part of the context in which the law exists and; as a result, it is not surprising that when we look at Delaware’s prosecution and criminal justice trends we find that African-Americans statistically get the raw end of the deal.  

According to numbers compiled by the Federal Bureau of Justice Statistics and the Census Bureau, for every white person who is imprisoned  in Delaware, 9.4 blacks are imprisoned in spite of the fact that blacks make up only 19.2% of the population.  Just as disturbing is the fact that in Delaware, where the total person of color population is only 25% of the total population, over half of those on death row are non‑white.  This is a unnerving disproportion.  

This problem of course isn’t Delaware’s alone, but is instead a dilemma that touches upon almost every aspect of the U.S. criminal justice system.  For instance, as a study done in the late 1990s shows, 73% of the cars stopped and searched by police on I‑95 from Delaware to Baltimore were driven by African Americans in spite of the fact that only 14% of the people driving on that part of the turnpike were black. It is ironic that the U.S. highway system, which is a symbol of American mobility, is also a symbol of how the plague of racism is transported from one part of the country to another.  

In spite of facts like these – facts having to do with black incarceration rates, death row racial disparities, sentencing differences along racial lines, and the national as well as the local  character of racism – neither Mr. Schnee nor Ms. Brady have spoken out aggressively on race-related issues.  And yet the problem of racial equity within the justice system is pivotal to democracy’s meaning and our vision of justice.  

This is why one of my priorities when I take office will be to establish a task force for attacking racial inequity within the state criminal justice system.  Along with dealing with the problems already mentioned, the task force’s mandate will include (1) laying the groundwork for correcting racial imbalances within police departments, both in terms of who works there and who receives promotions, and (2) rectifying similar imbalances within the attorney general’s office itself.  

Historically, racially imbalanced justice systems have NOT produced the level of racial justice we need to be truly democratic in Delaware or the nation.  The law, and the court systems that apply the law, are at best unfinished creations.  They are part of an endless flux, of a constant trial and error effort to identify and support justice in a world in which what is and is not just is not always clear to those making the judgments.  

Speaking of judgments and justice, I want to turn now to corporate crime and why it is that when we think of “being tough on crime” we usually think of drug addicts or serial killers and not of corporate criminals who sometimes damage even more lives than the average street criminal.  

I want to begin my comments on corporate crime by talking about Delaware’s connection to a scandal with which you’re all familiar: the Enron fiasco.  Earlier this year, the Philadelphia Inquirer and other media outlets reported that Enron’s rise to power was helped along by a group of Delaware laws that amounted to a corporate welfare system.  As the Inquirer stated, these laws allowed Enron to “shroud high‑stakes deals from investor scrutiny” by setting up 685 Enron subsidiaries  in Delaware – that’s right, 685 subsidiaries!    By doing this, Enron hid its true financial status from its investors even while the company was collapsing.  It is precisely because Delaware’s lawmakers promote such a pro-business local economy that Delaware is so attractive to large corporations.  It is why our state is called the U.S.’s “corporate capital.”  

Given Delaware’s pro-corporate legal landscape, it is no wonder that the state’s industrial contaminators get away with so much.  Look at the facts.  We live in a state in which one of our counties – New Castle County – ranks among the top 5% of U.S. counties that emit toxic substances like mercury, benzene and arsenic compounds.  On top of this, we are home to a poultry industry which revels in a sort of double abuse: while it contaminates the state’s waterways with runoff water from chicken farms, it also abuses its migrant workers, paying them only 60% of the national average for a manufacturing job.  

As if all this wasn’t bad enough, a higher percentage of Delaware’s native plant species have been killed off by development and lack of industrial oversight than in any other state.  Additionally – and maybe this is the worst of all – our cancer rate is the fourth highest in the nation and in Claymont, long known for its industrial pollution problems because of Sunoco and General Chemical, the rate of respiratory ailments among children is the highest of anywhere in the U.S..  Those who run these chemical companies apparently don’t care that if you destroy a people’s land and air and waterways, you run the risk of destroying their bodies too.  

In spite of all this pollution, the state’s Department of Natural Resources and Environmental Control – better known as DNREC – has done criminally little to take Delaware’s industrial polluters to task for breaking state environment-protection and health laws.  Usually, as a penalty, a guilty company receives no more than a slap-on-the-wrist fine which the firm is more than able to pay.  In other words, for all practical purposes, no real penalties are given.  

As attorney general I will step in and end such softness on crime.  My first move will be to investigate possible criminal behavior on the part of DNREC for  its failure to adequately oversee polluters while persisting in close ties with the industry it is mandated to regulate.  

My second move will be to re-orient the attorney general’s office so that it is willing to take the type of aggressive action that was taken in Texas when the Justice Department charged and convicted 2 managers of a chemical plant under the Clean Air Act.  The 2 managers were sentenced to 36 months in prison.  This is the kind of thing I will do when necessary.  Under my leadership, the attorney general’s office will not sell justice to the highest bidder.  The law will be applied to the rich as well as to the poor.  

And this is exactly the way things should be.  After all, corporate criminals who commit crimes from a distance – while sitting in their luxurious offices or boardrooms - shouldn’t be seen as somehow less responsible for their crimes than other people.  In fact, we could make the point – and I think we should make it – that those who endanger our health and lives by making corporate decisions that contaminate our land, air and waterways are involved in a higher level of violent crime than is the average street hoodlum.  As I stated earlier, Delaware has the fourth highest cancer rate in the country.  If even only a fraction of our state’s cancer deaths are caused by industrial pollution, that means that the CEOs and managers of the responsible plants have participated in a collective serial killing of far greater magnitude than any violent crime perpetuated by any individual criminal the state has ever known.  Why should such corporate criminals be left to wine and dine each other in the Hotel DuPont’s Green Room while many nonviolent drug addicts are thrown in jail rather than receiving the medical treatment they need.  

In conclusion, let me say this.  There is a tendency among literalists to see the law as a group of impregnable rules to be adhered to without deviation.  Yet the essence of the law is deviation.  Every judicial opinion handed down, and every argument made in court by a prosecutor or a defense attorney, is an attempt to further clarify the law and extract from it its most basic meanings.  It is this process of constant dialogue and debate that makes the law a living exploration of the meaning of justice, as opposed to being merely a code of vengeful dictums.  It is in this sense that the “living law” constantly deviates from itself in an effort to discover itself.  

This process of exploring ad articulating the law’s meaning doesn’t just occur in the courtroom or in law schools.  Often, the most profound legal changes are brought about by masses of ordinary people demanding, in dramatic and sometimes radical ways, a reconceptualization of the law and the meaning of justice.  This is essentially what happened during the 1930s union organizing drives when men and women, battling for fair wages, workplace rights and safe working conditions, propelled into existence a new vision, soon to be incarnated in a whole new series of laws, of the relationship between workers and owners .  Similarly, the women’s suffrage and  abolitionist movements, in addition to other grassroots mobilizations, shaped the law, frequently by working outside the existing law.  This should remind us of a very important point: that the law doesn’t just belong to lawyers and judges and politicians.  It belongs, ultimately, to the people it is supposed to protect.  If it doesn’t protect them, they have the right to reinvent the law so that it does.  

As attorney general, I will bring my knowledge of existing law to each case with which I must deal.  I also will bring to each case my knowledge that the law isn’t just a code of rigid rules to be memorized, but is instead an ongoing exploration of the nature of justice in a changing society.  

I will not stand for the unequal application of the law.  Not only the street criminal, but also the corporate criminal, will have to pay for her or his crime.