HispanicVista Columnists
Equal Protection Under the
Law
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By
Sal Osio, JD - From the Publisher's Corner
- July 6, 2008
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- From the Publisher’s Corner
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Equal Protection Under the Law
By Sal Osio, JD
Our law protects equally the rich and the powerful as it does the poor and the underprivileged against vagrancy, begging, public nuisance and petty theft. Equal protection is the hallmark of our legal system.
Since time immemorial the ‘haves’ have promulgated laws to protect themselves from the ‘have not’s.’ The ‘King’s law’ was and still is the supreme law of the land.
It’s almost hypocritical for us to allege that our system of justice is based on the equal protection of the law when we have an enormous disparity on social standing. The great divide between the rich, richer and the poor, poorer requires a compassion and understanding of the root causes of social behavior. Equal protection would be a fair and just standard if we applied it to persons of equal, or near equal, standing. But when we apply the anti vagrancy, begging and public nuisance laws to the homeless and les miserable who need to relieve themselves in public property or beg for their necessities, we overlook the underlying truth that the affluent members of our society do not experience these fundamental needs. So much for equal protection.
In his treatise “The Myth of Moral Justice” Fordham Law School Professor Thane Rosenbaum, authoritatively makes the distinction between man made law and moral law. In an affluent society the moral obligation of the privileged is to care for the disenfranchised, the infirm and the poor – the less privileged members of society. It is an unjust society that promulgates laws aimed at disposing of the needy by segregating them from the mainstream, through incarceration or redlining, confining them to ghettos, instead of accepting the responsibility of providing the necessary means to ensure their human dignity. Therefore, those laws are unjust that are applied in the absence of human compassion and understanding.
In a society infatuated with imprisonment, we have criminalized the underclass, particularly Blacks and Hispanics, who have not yet progressed up the social latter. Only a small fraction of the two million inmates in our prisons are confined for crimes of violence. Over 10% are mentally unstable, in need of treatment. The majority are substance abuse addicts. A significant number, for which statistics are lacking, were formerly homeless. Almost 80% are Blacks and Hispanics, the underclass members of our society. And, some 70% are repeat offenders in that they are confined for probation/parole violations, mostly technical, like driving with a suspended license.
We spend billions of tax dollars in feeding the incarceration machine, by confining the bread winners. But, we also condemn his dependents to shame and depravation, the very roots of ‘criminal’ behavior. And, we incorporate them in a public welfare system from which there is no escape, once more, at the expense of the tax payer. Public support of the dependent families is an exponentially greater cost to the incarceration of the bread winner.
In our society behemoth resources exceeding $1 trillion are allocated to military defense. Equally disturbing, is the subsidy of a flawed criminal justice system which economically feeds on itself. The reallocation of a small fraction of these resources would significantly enhance our criminal justice system. Is not the equal protection of the law a myth in the absence of social-economic justice?
In the quest for a better, more equitable and just society we must first acknowledge our failures. The criminalization of our society, largely based on social-economic and ethnic status, evidenced by our prison population, is conclusive evidence of our failure.
Where do we go from here?
First and foremost, we must reallocate our resources to education, the great equalizer, and social reform. We must reign in our ‘administrators of justice’ by reducing incarceration. Prison should be restricted to the removal of the menace to our safety, limited to crimes of violence and repeat criminal offenders. Parole/probation should be of limited duration and violators re-incarcerated only for the commission of crimes related to their initial offense, not, as an example, for showing up late to an appointment with the Probation Department. We need rehabilitation centers for the addicted, mental clinics for the infirm, community shelter and employment opportunities for the needy. What we do not need is more jails!
In their study of American politics, Professors Thomas R. Dye and L. Harmon Zeigler, entitled “The Irony of Democracy,” underline the role of the dominant elite, the privileged class, in defining the social structure, the rules and regulations, that govern our society. The legislation of criminal conduct and the administration of justice, leading to the ‘disposal’ of the underclass, is the underlying motive to preserve the status quo, the elimination of prospective competition from an upward mobile society. The right wing ‘law and order’ battle cry is a manifest of this phenomenon. Fear is the political weapon deployed to gain the support of the naive electorate. Accordingly, we must combat this undertow in our democracy by bringing to the surface the ugly nuance of elitist domination. Truth, moral justice and equality, through education and the force of public opinion, are our weapons. As Americans, as Christians, we must express our indignation, our anger, and demand just reforms.
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Sal Osio, JD, is the Publisher of HispanicVista.com (www.hispanicvista.com). He can be contacted at: SPOsio@aol.com.