Où Pour Toujours l’Injustice Perd Ses Quartiers: Due Process And Revolutionary Burkina Faso

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To head off the “[insert revolutionary leader here] DID NOTHING WRONG” crowd and just because Westerners tend to be woefully misinformed, let’s start with describing Burkina Faso under the revolutionary government of President Thomas Sankara and why despite its brief existence of four years it accomplished more than most other attempts at socialism, throughout the globe and history, ever have. All land and mineral wealth was nationalized. 2.5 million children were vaccinated against meningitis, yellow feaver, and measles. Before environmental issues were talked about by most of the world, the Democratic and Popular Revolution planted 10 million trees to fight back against the desertification of the country. In four years Burkina Faso became not only food self-sufficient by dramatically increasing agricultural production but had a surplus due to some crops like wheat being produced at triple the rate. The country spurned the silencing of stigma by being one of the first in Africa to recognize the AIDS epidemic. 700 km of rail were laid to facilitate extraction of manganese by and for the people. Female genital mutilation, forced marriages, and polygamy were banned. Sankara himself was an ardent feminist who promoted contraception and men stepping outside of traditional gender roles by going to the market and cooking. He was the first African leader to appoint women to his cabinet and the revolutionary military actively recruited women. These are just a few of the successes that Sankara and the Burkinabe under the Democratic and Popular Revolution were able to accomplish in the span of four years. And we’re not even touching on how President Sankara was an amazing orator who frequently told the most powerful people in the world that he refused to abide by their colonial rule any longer.

The great successes of Burkina Faso during this time makes it all the more tragic that the revolution fell apart after only four years. There are four major reasons why this happened: (1) President Sankara and the government’s conflict with certain sections of the proletariat, especially teachers, syndicalists, and unions in general; (2) the Committees for the Defense of the Revolution were decentralized and undisciplined as President Sankara himself admitted and was beginning to address, though unfortunately too late; (3) the international hegemony was scared to death that President Sankara was inspiring not only revolution in Burkina Faso but a Pan-African rebellion against the International Monetary Fund and capitalism itself, so they actively sabotaged and undermined the regime (and judging from others like President Lumumba of the Congo, Sankara’s execution very well may have been aided or ordered by these authorities); and finally (4)  the Popular Revolutionary Tribunals, an attempt to hand over control of the judiciary to the people for the purpose of establishing real justice. While having the best intentions, these tribunals quickly devolved into kangaroo courts for settling personal scores. This devolution happened because the Popular Revolutionary Tribunals were set up only in recognition of one of the two dialectics of the law: they had authority but not certainty.

Much like the proletarian state is still an instrument of violence arising from class antagonism, a revolutionary legal system cannot exist for long without authority and certainty. Authority is simply the framework by which the law outlines the actions of the state. In the United States there is generally ultimate Supreme Court authority through the Supremacy Clause and the rest of the Constitution, especially the Civil Rights Amendments as applied after Cooper v. Aaron. Cooper was the culmination of a plethora of cases that arose in reaction to Brown v. Board of Education, with Southern courts and governments refusing to recognize federal authority. The Supreme Court simply reaffirmed the federal system of government and while states rights’ are still held as an issue by conservative legal scholars, federal supremacy is to a certain extent accepted across the political spectrum. While the system of authority is at times ridiculously complicated, it functions to uphold the authority of the law as a whole and subsequently the authority and legitimacy of the state itself.

Authority itself though is only the synthesis of the tensions between two intersecting counter-posed relations: legitimacy and power. No authority can preserve its legitimacy without the power to do so, and no authority can exercise its power without the legitimacy to do so. And both of these relations were present at the start of the Popular Revolutionary Tribunals. The courts were legitimate because they were held in the open with direct oversight by the people. The conception of the appeals process and federal oversight are unique aspects of the US legal system that I doubt are in any way necessary for authority, especially in a country as small and far more homogenous as Burkina Faso. They had power because their decisions were binding and final. But of course alone these characteristics could not preserve it. They degraded: trials began to be held in secret and decisions became more difficult to enforce as magistrates and sects of the military began to fight among themselves. And they degraded because of the lack of certainty within the legal system.

Certainty is a bit more complicated. Traditionally certainty is framed as an important aspect of liberal formal equality, that people should know be able to calculate the legal impact on their lives like a set formula. I prefer to consider certainty by how it functions rather than how it is supposed to function. So for example, a liberal person would say due process rights are meant to protect all individuals from having rights taken away without some good reason. I would say due process rights are meant to prevent massive redistribution of wealth and create a certainty (i.e. you go 20 over the speed limit, you get a $1000 ticket) that makes it more difficult to dissent from the authority (you knew the speed limit and that going above it would get you punished, therefore it was your choice).

What limited use ‘due process’ has had for more progressive objectives comes from the need to preserve the legal fiction of equality under the law. In constitutional legal theory this is referred to as ‘representation-reinforcement,’ the theory that our legal-political system works by the laws morphing to match the majority’s will enough to prevent large scale revolts and the destabilization of the government. Its more liberal proponents argue in addition that this means the responsibility of the courts, and especially the Supreme Court, is to make sure there are no impediments of people resolving their problems through the political process. ‘Due process’ is the penultimate civil right of ‘representation-reinforcement,’ in that it is the guarantee of political process rather than the actual remedy of any grievances. And it is important to distinguish ‘due process’ from remedy: after all, what does ‘due process’ matter to the 95% of criminal defendants who are pressured into guilty pleas?

So it is not surprising that Sankara (and ironically the anarchists he despised) would not care much for guaranteeing due process in the new revolutionary legal system. But here lies the contradiction that the Democratic and Popular Revolution unfortunately failed to realize. The bourgeois state does not guarantee ‘due process’ for the sake of defendants: so why would the proletarian state? The purpose of the proletarian state to begin with is as a necessary instrument of violence to preserve the revolution. Its mission is hardly that different from the bourgeois state, the only differences being that power has been reversed and that this reversal will cause the withering away of class itself. Authority and certainty are just as, if not more, needed. So like the current bourgeois state, the proletarian state will use ‘due process’ to create a legal fiction of ‘representation-reinforcement.’ Rather than protecting the individual’s property rights, now it will exist to preserve the right to shared abundance, the abolition of private property. Rather than jumping hoops to receive damages from a corporation that harmed you through its conduct, the corporation would have to jump hoops to establish that every part of itself was contributing to the common good rather than the profits of a select few.

Without this clear principle, the law will quickly become abused as it was by the Popular Revolutionary Tribunals for the settling of private scores, the very reinforcement of individualism and private property relations. Sure, ‘due process’ will give the deposed bourgeoisie access to the political process, but it will only be the sort of access that the proletariat currently has. It is a necessary formalism that has been recognized, with varying degrees of success, by both the Democratic People’s Republic of Korea (Articles 69 and 158) and the Bolivarian Republic of Venezuela (Articles 26, 46, 49, 267, 271, 285, and 337), among many other socialist governments which have managed to thus far survive imperialist plots of regime change (while affording even people as vicious as Leopoldo Lopez due process).

It may seem underhanded or ‘fighting fire with fire,’ but revolution is always a messy process in this manner and arguably not nearly as inhumane as the current social conditions. By nature the process is too convoluted  to ever be permanent: it should wither away just like the state itself. President Sankara and the Democratic and Popular Revolution had the best intentions with the Popular Revolutionary Tribunals, but without guiding principles of authority and certainty like ‘due process’ it was doomed to devolve into an anarchistic and individualistic legal system. No doubt the brilliance of the movement and Thomas Sankara could have reversed this course, were it not for the treachery of Blaise Compaoré under the guidance of Western imperialist capitalism.

Are Grand Juries In The Way Of Justice?

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Photo by Tim Pierce.

I want to start with a few hard, fundamental truths. Tamir Rice was a child, and not the first Black child to be murdered in the way he was. It is a systemic part of the United States policing and criminal justice systems. Also, prosecutors are not tasked with creating justice, whatever ostensible rules of conduct might say otherwise. They are tasked with representing the interests of the state. When the executive branch of that state is systemically wired to kill Black children, justice for those Black children will never be an objective of prosecutors. This post will be about the third piece of this puzzle: grand juries.

First, I will provide a little background on what grand juries actually do and why, a subject even a number of lawyers fundamentally misunderstand. I will analyze the recent California legislation that prohibits grand jury inquiries into any incident involving a shooting by a police officer. Then I will conclude with an argument against going after grand juries, and instead how expanding and strengthening grand juries is the most feasible way to circumvent the exceptionalism afforded to the police and others by prosecutors.

A grand jury is summoned to decide whether criminal charges should be brought against a person being investigated by the state. How exactly grand juries function depends on whether it is a federal or state criminal charge: because the Fifth Amendment has only been selectively incorporated (see Adamson v. California, 332 U.S. 46 (1947)) into the Fourteenth Amendment’s Due Process Clause, there is no right to a grand jury for state criminal charges. However, all states have some form of grand jury system, but only twenty-two of those states require a grand jury.

I am going to use Ohio as an example, not only because it is the grand jury system in question but because it has many important elements for consideration. Ohio has denied the government the power to abolish the grand jury, but whether a grand jury is necessary for a particular proceeding is up to the discretion of the presiding judge (Baldwin’s Oh. Prac. Crim. L. § 39:3 (3d ed.)). The grand jury is essentially an arm of the court of common pleas, and the judge has the standard powers afforded to judges for trial juries such as dismissing individual jurors, placing a juror in contempt, etc. (id. § 39:10 (3d ed.)). However, the only party allowed to present evidence to the grand jury is the prosecutor (id. § 39:11 (3d ed.)). Even the Ohio Supreme Court has state that this power creates abuses:

In federal and state jurisdictions the grand jury serves as a shield against official tyranny, malicious prosecution, and ill-advised, expensive trials. However, a potential for abuse still exists within the grand jury system. Examples of abuse are: selective prosecution, vindictive prosecution, the use of perjured testimony, excessive use of hearsay, and prosecutorial appeal to the passions of the jurors.
These abuses stem from the degree of control a prosecutor wields in grand jury deliberations. 
State v. Grewell, 45 Ohio St.3d 4 (1989) [internal citations removed].

Despite the purported role of grand juries as “a shield against official tyranny,” most experts recognize that the nonadversarial nature of the proceeding makes them simply a tool of law enforcement and prosecutors to investigate and charge respectively (Baldwin’s Oh. Prac. Crim. L. § 39:2 (3d ed.)). In Ohio, 5,565 individuals were indicted for drug offenses in 2014. While I was not able to find an official number, it appears that 10 police officers were indicted in 2014, 6 for manslaughter in an excessive force case, one for illicit sexual contact with a minor, and one for office theft (please feel free to correct me if these numbers are wrong). Several officers were not indicted by grand jury investigations, including in the shooting of John Crawford III at a Wal-Mart. The grand jury is not governed by any technical rules of evidence, and do not even have to be there for every witness testimony or other evidence introduced (Turk v. State, 7 Ohio 240, PT. II (1836)). But the accused do retain privileges against self-incrimination by questioning during the grand jury, though evidence can be introduced of self-incrimination earlier, such as by police officers (State v. Baker, 137 Ohio App.3d 628 (2000), cf. State v. Mackey 2005 WL 1415419 (2005)). A grand jury’s ruling can be challenged, but only when it is an indictment (Baldwin’s Oh. Prac. Crim. L. § 40:10 (3d ed.)).

So now that we have a basic understanding of grand juries, but keeping in mind that they vary from state-to-state, let’s look at the new California legislation. The new bill prohibits the use of grand juries, and vests the power solely in prosecutors. The thinking behind this is that, because prosecutors are elected in California, the change will make indictments accountable to the public. However, this thought is logically flawed for a simple reason: the power is already mostly in the hands of prosecutors. If anything, prosecutors are far more likely to be sympathetic to police officers than a grand jury: they depend on those officers for every criminal conviction, from the arrest to testimony at trial. Whether they are elected or not is immaterial: it is not a policy preference, it is an intrinsic part of their work. While not all prosecutors are popular among police, all prosecutors walk a fine line and most certainly cannot be objective in how they carry out indictments of police officers. The California law’s likely effect is to simply change the arena, and I doubt that in 2016 we will see significant differences in police being indicted or convicted.

And this is why the recent call by some activists to abolish grand juries in these situations concern me. It makes me fear that the mainstream media and prosecutors have succeeded in the most common tactic of white supremacy: convincing us that individual racists, rather than a racist system, is the problem. That “peers” are responsible rather than prosecutors. And this is not to deny the evil side of jury nullfication, and that there are situations in which the individual racism significantly contributes or is even the main source of the problem. But that level of contribution is rarely the deciding factor. Regardless of our feelings about individual racists (and I have plenty as someone from a Southern small town), individual racism is not what prevents grand juries from indictments against police officers.

I also worry that prohibition of grand juries for police killings could be a slippery slope: after all, the decision for whether a grand jury will be called is usually up to the judge, and if the judge sees that one cannot be called for police officers, depending on their politics they may see this as ample reason to restrict the privilege from others. And while the current grand jury system is in no way “a shield against official tyranny,” any removal takes away opportunities for indictments to not happen as frequently, which is certainly a goal for any of us who recognize how punitively inane and racist our criminal justice system is.

What if instead of abolishing the grand jury system we made the burdens of carrying it out as due process heavier? The very same rules of evidence that can be subverted to not bring an indictment against a police officer can be subverted to bring an indictment against a young Black person for smoking marijuana. Making the proceeding more adversarial could pressure prosecutors into carrying out more substantive investigations of police officers. And making grand juries mandatory for a criminal indictment could actually help to prevent all the police misconduct that does not even get to the level of a grand jury.

However, the process itself, the way that prosecutors have transformed it over the years, should bring us to a broader conclusion: that much more change is needed to actually start holding the government and individual police officers accountable for the violence they commit. One of my favorite things to cite to those who have faith in the criminal law is how many criminal laws prior to Model Penal Code had explicit statements that their purpose was to identify and segregate a class of undesirable individuals. While such transparency no longer exists in the mission statements of these laws, almost all of the laws have retained most of their substance (vagrancy became loitering and disorderly conduct, sodomy became criminal sexual act or crime against nature, etc.). Perhaps it is time to seek measures of accountability outside of a capitalist state built at the very foundations to avoid that accountability.

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The Permanent Jury Nullification: A Trotskyist Argument For Jury Nullification

UPDATE: An interesting case for advocates of jury nullification to keep an eye on.

In my criminal law class, one of the concepts we have studied thus far is the idea of jury nullification. For those of you not familiar, jury nullification is when the jurors ignore the instructions of the judge, the “law finder” of the court, to render a verdict of not guilty. Jury nullification has a rather complicated historical record: on the one hand, it has been used by social movement like the anti-war movement in order to prevent the incarceration of people who took direct action against the state. On the other hand, it has led to white supremacist court rulings, from the killers of Emmett Till to Colin Murphy. Jury nullification is thus very controversial, even among Leftists. It finds a considerable amount of support among both the Left and Right libertarians, who see it as a glorious example of the individual(s) overcoming state oppression in order to protect their communities. In U.S. hegemonic doctrine (or what less-antagonistic lawyers would call “case law”), jury nullification has been found to be a power inevitably granted due to the rights of the Fifth Amendment for juries to be the democratic check to state power as the court’s “fact finders” and the Sixth Amendment for protection from double jeopardy. In other words, if you give juries the power to render verdicts with only guiding instruction and those verdicts of acquittal are absolute, there is no constitutional way to outright criminalize jury nullification. But of course, a capitalist state is never held back by such pithy restraints as “following its own laws.”

In People v. Williams (25 Cal.4th 441, 106 Cal.Rptr.2d 295, 21 P.3d 1209, 2001), an 18 year old young man had sexual intercourse with a 16 year old girlfriend. If help to the standard of consent between two adults, the girl’s assent would have been considered consent. But because of her age, Williams was charged with the misdemeanor offense of unlawful sexual intercourse with a minor. When the case reached the California Supreme Court, the following exchange between a juror and the presiding judge:

Judge: It’s been reported to me that you refuse to follow my instructions on the law in regard to…unlawful sexual intercourse, that you believe the law to be wrong and, therefore, you will not hear any discussion on that subject. Is that correct?

Juror: Pretty much, yes…

Judge: All right. Well…I would remind you…that you took an oath at the outset of the case in the following language: ‘Do you and each of you understand and agree that you will well and truly try the cause now pending before this Court and a true verdict render according only to the evidence presented to you and to the instructions of the Court.’ You understand that if you would not follow the instructions that have been given to you by the court that you would be violating that oath? Do you understand that?

Juror: I understand that.

Judge: Are you willing to abide by the requirements of your oath?

Juror: I simply cannot see staining a man, a young man, for the rest of his life for what I believe to be a wrong reason.

Judge: Well, you understand that statutory rape or unlawful sexual intercourse has been described to you as a misdemeanor? Did you follow that in the instructions?

Juror: I’ve been told it is a misdemeanor. I still don’t see – if it were a $10 fine, I just don’t see convicting a man and staining his record for the rest of his life. I think that is wrong. I’m sorry, Judge.

Judge: What you’re saying is not the law either concerning that particular aspect. [my emphasis added]

Juror: I’m trying as best I can, Judge. And I’m willing to follow all the rules and regulations on the entire rest of the charges, but on that particular charge, I just feel duty-bound to object.

Judge: So you’re not willing then to follow your oath?

Juror: That is correct.

The juror was excused and Williams was convicted by the newly convened jury. The state’s hypocrisy in this case is palpable: when the judge says that the juror’s opinion is not the law governing the issue, the implicit assumption here is that the jury is duty-bound to be law finders. But we know this not to be the case, precisely because the state argues the opposite when it is discouraging jury nullification! In my opinion, this juror almost avoided his dismissal. It was not until the last question where the juror explicitly stated that he was not willing to follow his oath. When he was asked a similar question for the first few times, all he stated was that he could not see a situation in which he would convict Williams, and his determination as to conviction is his power through jury nullification. There are two lessons to learn from this case: first, that juries are full of people whose commitment to the capitalist state goes far enough that they will turn you in simply for resisting the state’s assignations. Second, that the state has many loopholes by which it can pressure and prod jurors into not using jury nullification or eliminating jurors determined to use jury nullification. If jury nullification is a tool that we wish to use, then we must educate people unfamiliar with the law about due process rights and their power as jurors. But even in this aspect we must be cautious: in 2011, Julian Heicklen was charged with jury tampering for his leafletting about the jury nullification power.

Trotsky did not write much on the political landscape of the United States, which is a shame because what little writing he did do on it shows that he had a very introspective analysis of it. “Certainly the phases of development of the proletarian party in America,” he writes, “will be sui generis (unique)… It is evident that the possibility of participating in and of utilizing a “Labor Party” movement would be greater in the period of its inception, that is, in the period when the part is not a party but an amorphic politic mass movement. That we must participate in it at that time and with the greatest energy is without question” (“On the Labor Party Question in America”). Most Trotskyists in the United States, and notably Socialist Alternative, take some form of this approach to electoral politics. But when Trotsky talked about participating in and utilizing such movements, he was not simply talking about this in regards to electoral politics. I would argue that this approach is just as relevant to how Trotskyists should approach the mostly liberal and libertarian (Left and Right) movement to reform or dismantle the criminal injustice system. Similar to voting, juries are one of our few means of exercising anything remotely resembling democracy. The capitalist politicians and courts have required this sense of community legitimacy in order to carry out their reign of terror on the working class, and especially with all the populations which serve as the United States’s underclass (Black people, Native peoples, gender nonconforming people, drug addicts, etc.). After all, how are we to criticize the incarceration of our family and friends as state violence when it is a jury of their peers that made the decision? But of course this is a farce: as demonstrated in the above cases, the state will use all means at its disposal to convince juries that their options are limited to carry out the state’s own agenda, that they are little more than “yes men” to mass incarceration. This is one of the greatest tragedies of the criminal injustice system: the dramatic irony of a jury that thinks they can only be servants of the capitalist agenda, but in actuality has some of the greatest power within the system to fight that agenda.

It is vital for us to educate the working class and underclass of the importance of serving on a jury. We need to train our members in how to present themselves to be more likely to pass voir dire, and subsequently to carry out a socialist agenda while on the jury, including the use of jury nullification. One juror informing the other jurors of their own power, while it can lead to being dismissed like in the case above, has often led to the most important decisions made in courtrooms (and not just in Twelve Angry Men). We do not need to go through some obligatory political stage in order to start seizing the means of producing incarceration and other state-based punitive judgments. We, any person in this country with jury privileges, can build our conception of socialist law today through actions like jury nullification.

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