CIVIL AND CRIMINAL WRONGS AND RIGHTS
"If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice," said Learned Hand. A consistently fair justice system is an essential building block of a thriving democracy -- and yet the scales seem to tip too often in favor of the corporate powers-that-be in our country.
Steven Olsen, a two-year-old boy, became permanently blind and brain-damaged because a hospital refused to give him a CAT scan that would have. detected a growing brain abscess. A jury awarded Steven $7.1 million in non-economic compensation for a lifetime of darkness, pain, and around-the-clock supervision. But the judge was forced by a California law to reduce the amount to $250,000. Similar laws have been enacted in other states, and George W. Bush and his congressional cohorts would like to enact them nationwide.
Bush and company seem to regard the civil justice system as a nuisance that threatens to destroy our economy and way of life. In reality, America's civil justice system plays an indispensable role. When the rights of injured consumers are vindicated in court, our society benefits in countless ways: compensating victims and their families for shattering losses (with the cost borne by the wrongdoers rather than taxpayers); preventing future injuries by deterring dangerous products and practices and spurring safety innovation; stimulating enforceable safety standards; educating the public to risks associated with certain products and services; and providing society with its moral and ethical fiber by defining appropriate norms of conduct. As Peter Lewis, chairman of Progressive Insurance Company told me, tort law functions as his industry's "quality control."
The justice system also embodies democracy in action. The words EQUAL JUSTICE UNDER LAW, emblazoned on the Supreme Court building, speak volumes. An average citizen will never influence an election or a vote in Congress as much as those corporations and well-heeled individuals who make juicy contributions to a politician's coffers. But when the high and mighty act improperly and cause harm to an ordinary citizen, and she files a lawsuit, she stands before the judge and jury as the equal of her more powerful opponent.
That, at least, is the theory. Sometimes it works that way. But the reality is often different, and the playing field uneven. Rich and powerful defendants hire big law firms that use their unlimited resources to delay and defeat justice.
One of their favorite tools is "discovery" -- the process whereby each side in a case gains access to the relevant information in the hands of the other side. Discovery rests on a sound idea: If it's truth and justice we're after, we want both sides and therefore the fact finder -- the jury -- to have access to all relevant information. But, in practice, law firms use discovery to defeat rather than promote truth and justice.
Under the federal discovery rule, and its similar state counterparts, when one side requests information or documents, the other side must "fairly meet the substance of the" request. In practice, lawyers do anything but. In the words of Judge William Schwarzer, lawyers generally ask themselves: "How can I interpret this interrogatory, or document request, to avoid giving up what I know my opponent is after?"
Corporate law firms use discovery as a sword as well as a shield -- to harass, irritate, and delay. They file countless requests for documents, and conduct numerous depositions, just to keep the other side off balance and prevent a case from getting to trial. If justice delayed is justice denied, millions of ordinary citizens are denied justice by their opponents' abuse of the discovery process. Moreover, except where the law provides for awards of prejudgment interest, delays enable corporations to benefit from returns on investment. The longer it takes to get to trial, the more witnesses become unavailable or their memories dimmed, leading to inaccurate and unjust outcomes.
A solution to discovery abuse begins with recognition that the very idea of discovery actually makes little sense. If the goal of a trial is truth and justice, it should be unnecessary to dig out the other side's evidence. The idea that each side may conceal information that could be critical to the fact finder, provided the other side doesn't ask for it, makes sense only if we view the trial as a kind of game. We don't expect a competitor to help his opponent. A football coach doesn't share with the other team ,his own team's tactics or scouting reports. But in a viable system of justice, there is no justification for playing hide and seek with relevant information.
Our civil justice system should require both sides to share all relevant information without prompting. In other words, we should move away from "discovery" and toward "disclosure." Rather than put the burden on a parry to discover information it doesn't know exists and rely on opposing counsel to cooperate, we should require each side to disclose all relevant information in the early stages of every action. (Reformers have proposed such a rule, but no action has been taken.)
Lawyers would still have to decide what information is relevant, so the rule should be bolstered by a declaration that any uncertainty must be resolved in favor of disclosure. Lawyers would unambiguously know that they must produce all relevant information without regard to how a discovery request happens to be drafted, and without the benefit of self-serving interpretations. If violations were punished severely, such a rule would make the legal system more of a forum for justice rather than an arena for game playing and attrition.
Discovery abuse is one of many advantages enjoyed by the wealthy (often corporate) litigant. at the expense of the ordinary citizen. Does this trouble our lawmakers? Are they clamoring for reforms that level the playing field? No, our elected representatives have looked around and reached a startling conclusion: Ordinary citizens have an unfair advantage in our tort system, and the system needs to be changed to help corporations and insurance companies and physicians!
That's the amazing thinking underlying the so-called "tort reform" that has become a major issue in American politics, including presidential elections. The corporate community clamors that runaway juries, overcome by emotion and sympathy, routinely dispense outlandish awards that drive companies and physicians out of business, notwithstanding the hundreds of thousands of fatalities and serious injuries that occur yearly. Actual payments and settlements amount to less than what we spend on dog and cat care. (Ninety percent of injured persons do not even file a claim.) No impartial studies document these claims; in fact, studies suggest the opposite. The Center for Justice and Democracy reports that median jury awards dropped 30 percent in 2002 to $30,000 from $43, 000 in 2001. Nevertheless, the Republican Party has taken up the cause.
The GOP solution? A series of legislated measures that prevent injured citizens from receiving fair or full compensation in courts of law. The most significant measures cap the amount of compensation victims can receive for pain and suffering and limit or eliminate a jury's ability to award "punitive damages" designed to punish particularly egregious actions and deter the wrongdoer and others from repeating such misconduct. Other measures, such as elimination of strict liability in product liability actions and the elimination of joint and several liability, make it impossible for some victims to receive any compensation.
The full anti-victim package, more accurately called tort deform than tort reform, damages Americans' cherished constitutional right to trial by jury. It ties the hands of jurors, preventing them from doing justice as the case before them requires. Only the judges and juries see, hear, and evaluate the evidence in these cases. But it is the politicians, absent from the courtrooms, who push bills greased by campaign cash that send a perverse message to judge and jury: Too much justice is a bad thing when it comes at the expense of the rich and powerful.
Consider the case of George W. Bush, a leading proponent of tort deform. In their book Bush's Brain, Wayne Slater and Jim Moore recount their interview with Karl Rove, Bush's top White House political adviser. Rove said that he "sort of talked [Bush] into" tort reform. Why? "Rove wanted that issue elevated because he knew that its most ardent advocates in Texas could provide millions of dollars in campaign contributions needed to unseat [former Texas governor Ann] Richards."
Such political pandering has a vicious cost to innocent people. Take legislation adopted in some states and pending at the federal level, supported by Bush, the insurance industry, and many physician associations, which would place a cap of $250,000 on a lifetime of pain and suffering. Some insurance company bosses make $250,000 or more every week! No matter how serious the injury (such as brain damage) or how inexcusable or outrageous the misconduct (for example, a doctor removing the wrong organ) causing the injury, this legislation would forbid juries from awarding more than the predetermined amount. It's already the case that injured persons receive zero compensation unless they can prove that they were wronged to the satisfaction of jurors and judges with no personal stake in the outcome. The tort deformers are determined to limit the amount of recovery for those who successfully meet that strict burden. Backwards thinking.
Other legislation, already passed in some states, limits punitive damage awards. Punitive damages, which may be meted out only in extreme cases of misconduct, such as the Exxon Valdez disaster, are often the best means of deterring future wrongdoing. Such awards are infrequent and, if they are excessive, may be reduced by trial judges and courts of appeal. But pandering politicians have decided to take the matter into their own hands. Ignoring the crucial deterrent purpose of punitive damages, they seek to eviscerate or eliminate this valuable benefit-the ability of a body of ordinary citizens representing the community to send a message that certain bad behavior is beyond the pale.
If we are to restrict the legal rights of victims of wrongdoing, those damaged by hazardous goods, toxic chemicals, and the like, we ought to have some sound public policy basis. What is the basis for tort deform? In a nutshell, a mishmash of self-serving propaganda -- lurid, often false anecdotes involving unnamed physicians allegedly forced to abandon medical practice because of high insurance premiums and corporations driven to the brink of bankruptcy by excessive verdicts. These anecdotes, and the self-serving lesson drawn from them, are spread through a massive disinformation campaign.
Then there is the McDonald's coffee spill case. When a jury awarded a woman $2.9 million against McDonald's because of burns she sustained from a coffee spill, editorial writers, pundits, and talk shows went to town. The Chamber of Commerce even ran a radio ad mocking the verdict. The case became the poster child for tort deform.
The propagandists emphasized that millions drink coffee every day without spilling it, and those who do spill it accept minor burns as the price of their carelessness. Here are some things they forgot to tell us: (1) McDonald's coffee was far hotter than normal coffee, causing a greatly accelerated burn rate; (2) McDonald's had received 700 complaints of burns, but stubbornly refused to lower the temperature or place a clearer warning on coffee cups; (3) the seventy-nine-year-old victim, Stella Liebeck, suffered third-degree burns on her thighs, buttocks, and genitals, requiring a week of hospitalization and subsequent skin grafts; (4) Shortly after the incident she wrote McDonald's a letter explaining that she had no intention of suing and requesting only that McDonald's cover her medical and recuperation costs and look into its coffee-making process to avoid future injuries; (5) McDonald's declined to change its policies and offered Liebeck an insulting $800; (6) Only $160,000 out of the $2.9 million verdict went to compensate Liebeck. (The jury arrived at $200,000 for compensatory damages, including pain and suffering, then knocked off 20 percent because Liebeck's negligence contributed to her injury.) The rest was for punitive damages; (7) A major goal of punitive damages is to deter future misconduct, and in this case it worked -- McDonald's in Albuquerque, New Mexico, cooled its coffee after the verdict; (8) The trial judge reduced the punitive damages by 82 percent to $480,000, bringing the overall liability down to $640,000. To avoid the expense and uncertainty of an appeal, the parties reached a settlement for less still.
In sum, an arrogant, megabillion dollar corporation, indifferent to numerous injuries caused by its scalding product, was brought to heel by a jury of ordinary citizens. The verdict compensated an elderly woman for severe suffering and forced the company (and perhaps other companies) to take action that spared future victims. To the extent the verdict was excessive, a built-in corrective mechanism in the courts reduced it.
In other words, the system worked. But why let the facts (pointed out by Newsweek and the Wall Street Journal) interfere with a perfect propaganda opportunity? Similar distortions and dishonesty are seen across the board. Company spokesmen and CEOs insist that lawsuits and insurance premiums are financially devastating. Yet, the very companies most loudly proclaiming hardship and demanding tort reform (such as Dow Chemical, Corning, Monsanto, Textron, Upjohn, Coleman Company, Cooper Industries) report megaprofits on an annual basis! Moreover, according to Ernst & Young and the Insurance Risk Management Society, in 1999 the total of all business liability costs combined were $5.20 for every $1,000 in revenue.
Supporters of tort reform invoke one myth after another: a litigation explosion, juries automatically ruling in favor of plaintiffs and routinely awarding punitive damages, an economy shattered by these awards. Each of these notions is demonstrably false. Rather than bombard you with data, I refer the interested reader to the web site of the Center for Justice and Democracy: http://www.centerjd.org
. As the Center's data demonstrate, only a tiny percentage of persons injured bring lawsuits, and an even tinier percentage of those who do so receive large verdicts. Tort deform is a justice-destroying solution to a trumped-up scare tactic to escape accountability.
A driving force behind this dishonest campaign is the insurance industry. Whenever insurers face low interest rates and declining stock investments, they start the drumbeat against justice for victims. They've made a particular cause celebre of medical malpractice. Instead of demanding disciplinary action against incompetent physicians and urging medical associations to police their own ranks, the insurance industry gouges the specialized physicians and then lobbies state and federal legislatures to curtail victims' rights and remedies. Physician policyholders have joined the insurance industry's call and paraded to the legislature.
Why do physicians allow themselves to be tools of insurance companies which gouge them regardless of whether they are among the incompetent few who account for most malpractice claims (5 percent of doctors are involved in roughly 50 percent of malpractice payouts)? One answer is that insurance companies frighten physicians with false data suggesting that malpractice suits run amok. A persuasive case can be made that there are far too few malpractice suits. A Harvard School of Public Health study estimated that gross malpractice in hospitals alone takes eighty thousand American lives a year and Causes hundreds of thousands of serious injuries. Yet studies show that roughly 90 percent of people harmed by medical malpractice do not file suit.
If you total the entire amount of premiums all physicians pay in a year and divide it evenly by all the physicians practicing in the United States, the average annual premium is $10,000 per doctor. Very manageable. So why are some doctors paying $50,000 or $100,000 a year or more to their malpractice insurers? Because the insurance companies have learned to over-classify and reduce their risk pools, thereby charging exorbitant amounts to specific specialists like obstetricians and orthopedic surgeons. In addition, because insurers fail to surcharge the few incompetent physicians in these specialties, the competent specialists pay far more than they should.
There is another benefit to the insurance industry from this kind of over-classification. When obstetricians are gouged, they protest loudly, threaten not to deliver babies, and sometimes actually go. on strike. This makes great television -- crying babies and physicians in their garb blaming lawyers -- and deflects blame from the insurers, who laugh their way to greater profits. (During almost the entire period in which they pushed tort deform, claiming hardship, the insurance industry made money. For much of the period, their profits soared.) Last year, the property-casualty insurance industry reported a 1,000 percent increase in profits over the previous year.
There are no television visuals of the human victims who receive neither compassion nor compensation, and little air time for people like Donald). Zuk, chief executive of SCPIE Holdings Inc., a leading malpractice insurer in the West. Mr. Zuk assails fellow insurance company executives who blame the legal system for the malpractice crisis. As Zuk candidly acknowledged to the Wall Street Journal, the problem is "self-inflicted."
Neither organized medicine nor the insurance companies go after bad doctors. The AMA's website does not report any data about incompetent or crooked physicians, and the insurance companies have shown little interest in loss prevention. Instead, both physicians' and insurers' lobbies fund and press legislators to enact laws that politicize the courts, tie the hands of judges and juries, and make it harder for innocent people to receive just compensation for terrible suffering.
Are malpractice awards the national crisis physicians and insurers suggest? In fact, the entire malpractice insurance premium business represents one half of one percent of the nation's health care costs (amounting to roughly what the country spends on dog food). Isn't it time to focus on malpractice prevention instead of trying to restrict the rights of hundreds of thousands of Americans harmed by their doctors' negligence? We mustn't ignore the severe plight of these suffering human beings. People like Colin Gourley, a Nebraska boy who suffered devastating injuries at birth because of medical malpractice by his mother's obstetrician. A jury found that $5.625 million was needed to compensate Colin for a lifetime of medical care and suffering, but a cruel Nebraska law required that the verdict be slashed to one-quarter that amount. Tragically, there are similar stories from around the country.
Whether it's malpractice, products liability, or any other aspect of the civil justice system, we need to ask whether proposed reforms level the playing field or tilt an already unlevel field even further by making it more difficult for ordinary citizens to receive justice.
The tort deform movement amounts. to a perverse rewriting of history. Tort law produced decades of slow but steady progress in state after state respecting the physical integrity of human beings against harm and recognition that even the weak and defenseless deserve justice. Instead of seeing this evolution as a source of national and global pride, a coalition of insurance companies, corporate defendants' lobbies, and craven politicians, led by George W. Bush, depict it as a source of shame and instability that must be stopped.
If this campaign succeeds, the results are sadly predictable. Tort deform means less deterrence, which means more injuries, more uncompensated victims, and tremendous overall costs to society. As the countless victims still experiencing horrors as a result of exposure to asbestos, lead poisoning, and use of dangerous products like the Dalkon Shield know all too well, America needs a stronger, not weaker, civil justice system.Problems with Our Prison System
The criminal justice system is also broken so badly that one hardly knows where to begin describing the breakdown. We can start with the war on drugs, since commentators across the political spectrum recognize its lunacy. We pour almost endless resources (roughly $50 billion each year) into catching, trying, and incarcerating people who primarily harm themselves, thereby damaging and endangering communities and draining crucial resources from the police, courts, and prisons that could be used to combat serious street crime (and suite crime -- see the chapter "Corporate Crime and Violence") that directly violate the public's liberty, health, safety, trust, and financial well-being. As with alcoholics and nicotine addicts, the approach to drug addicts should be rehabilitation, not incarceration.
The war on drugs also contributes to other negative features of the criminal justice system, including discriminatory treatment of African Americans. Racial profiling results in harassment and invasion of privacy of people who have done nothing to justify suspicion -- people whose only crime is the color of their skin. Proponents of racial profiling claim it is justified on the ground that African Americans commit a disproportionate amount of crime. It's certainly the case that African Americans constitute a disproportionate and growing portion of the prison population, but that is in large part because of the war on drugs.
Between 1980 and 1999, the incarceration rate for African Americans more than tripled. According to the Urban Institute, black men today have a 28 percent lifetime chance of incarceration, compared to 7 percent for white men. This was largely the result of tougher sentencing laws enacted in the 1980s that made the punishment for distributing crack cocaine 100 times greater than the punishment for powder cocaine. Persons convicted of crack cocaine offenses, who tend to be African Americans, received substantially harsher sentences than white citizens who are more likely users of the powder form of the drug. (A person convicted in federal court of distributing five grams of crack cocaine receives a mandatory five-year minimum sentence while it takes 500 grams of powdered cocaine to trigger a five-year mandatory sentence.) A 2002 study titled "Reducing Racial Disparities in Juvenile Detention: Eight Pathways to Juvenile Detention Reform" by the Annie E. Casey Foundation found that African-American youth with no prior record were six times more likely to be incarcerated than white youth with no prior record when charged with the same offense. The Urban Institute and others document how the incarceration of Blacks for nonviolent drug offenses has a devastating effect on inner-city neighborhoods.
The discriminatory treatment of African Americans occurs with respect to the most serious crimes as well. Among the many problems with the death penalty is its discriminatory impact resulting from racial prejudice -- a black man convicted of killing a white is far more likely to be sentenced to death than a white man convicted of killing a black. More generally, the death penalty is disproportionately sought and administered against racial minorities. Studies ordered by then-Attorney General Janet Reno revealed that from 1995 to 2000 roughly 75 percent of those against whom federal prosecutors sought the death penalty were blacks or ethnic minorities, even though far less than 75 percent of the people who commit federal capital crimes are members of such groups.
Of all the arguments in favor of capital punishment, supporters have neglected one -- given the state of our prisons, inmates must often feel they are better off dead. As our penal system has abandoned all pretense of rehabilitation, prisons and their internal culture of violence turn even minor drug offenders into hardened criminals. Those who are eventually released. have little chance of leading productive lives. In November 2000, the New York Times reported that many states even prohibit ex-felons, who have served their time, from voting. (Jim Morris, the famous impersonator, used to do a clever routine that captured the absurdity of the war on drugs. He impersonated the first George Bush giving a macho spiel about the war on drugs: "If you do drugs, you will get caught, and if you get. caught you will do time, and if you do time, you will do ... drugs. ")
To some extent, government's response to failed prisons has been an overt abandonment of responsibility. Over the past few decades, many state and local governments, seduced by the siren call for privatization of public services, turned to private corporate prisons that made grandiose promises of cost saving. There is no evidence that they have delivered on those promises.
A series of academic and government studies and General Accounting Office reports offer little evidence of cost savings from prison privatization. Worse still, a study by Good Jobs First, a national research center that tracks state and local development practices, suggests that "prisons for profit" projects are often cesspools of corporate welfare that rip off taxpayers. Good Jobs First studied sixty privately built and operated prisons and found that three-fourths of them received valuable subsidies -- tax-advantaged financing, property tax reductions, and tax credits.
Has the corporate prison served other penal objectives? Hardly. In 2001, the American Prospect reported that the search for profits through cost cutting has resulted in significantly higher employee turnover, with dramatic ill effects on quality and safety. The magazine cites a survey conducted by George Washington University that found 49 percent more inmate-on-staff assaults and 65 percent more inmate-on-inmate assaults in medium and minimum security private facilities than in similar prisons run by government.
American Prospect, Good Jobs First, and other watchdogs have documented numerous abuses and security lapses in prisons run by some of the nation's leading private-prison companies. On the one hand, there have been easy prison escapes while guards looked away; on the other hand, extreme physical abuse of prisoners, widespread denial of medical care, and failure to segregate inmates from more dangerous inmates. In some states, conditions were so poor that the government (at times under pressure from the federal government) has been forced to take control from the private operator.
Privatization of prisons was a dubious idea that has often proven to be a costly mistake, yet another drain on taxpayers to feed the profits of private corporations that fail to deliver on their claims to benefit the public. Governing bodies at all levels should abandon this failed experiment.
As is often the case with criminal justice policy, one foolish initiative begets another. The ill-conceived war on drugs helped create the need for the ill-conceived privatization of prisons by greatly expanding the prison population beyond the capacity of public prisons. We can begin to undo this knot by replacing the failed war on drugs with regulation, rehabilitation, and education. But such an idea will face resistance because this phony war is a symptom of a larger problem: a mindless "get tough" crime policy that substitutes slogans for common sense.
"Three strikes and you're out" sounds good, until it leads to a life sentence for marijuana possession or shoplifting. We need to get tough on rapists, muggers, murderers who make our streets unsafe, and corporate criminals who swindle shareholders and the taxpaying public of millions of dollars. All too often law enforcement ignores such offenders and reserve its toughness for relatively minor violators.
As if lengthy periods of incarceration for minor offenders weren't bad enough, our criminal justice system also punishes altogether innocent persons. In the past decade, DNA testing, pushed by Barry Scheck's Innocence Project, has exonerated well over one hundred persons wrongly convicted of serious crimes. All states should create an innocence commission to "monitor and investigate such errors, and Congress should pass pending legislation (the Advancing Justice Through DNA Technology Act) which makes post- conviction DNA testing available to inmates.
Roughly one-fourth of those exonerated by DNA had confessed to the crime in question (before recanting the confession and protesting their innocence). False confessions have turned out to be a surprisingly widespread problem, encouraged by certain pervasive police practices, such as threats and promises that overwhelm frightened or mentally retarded suspects. To make matters worse, juries are not in position to evaluate false confessions because the police often choose not to videotape interrogations. A few states now require videotaping, a positive step that all states and the federal government should adopt.
Another positive step would be better representation for death row inmates, both at trial and on appeal. Among those exonerated by DNA testing and other means are an alarming number of people who were on death row. Experts say that a major cause of their wrongful convictions was inexperienced and under-resourced defense attorneys. Judges need to appoint more able and experienced counsel in capital cases, and legislatures need to establish a system that facilitates this process.
Better still, the death penalty should be abolished. Given the inevitable execution of innocent persons, the racial bias in implementation, the costly appeals process (without which there would surely be more innocent people executed), the cost exceeds the cost of life in prison, and the absence of any reliable evidence showing a deterrent effect, the case for abolition is compelling; Indeed, most civilized nations long ago abandoned capital punishment. During this decade, the murder rates in countries and states without the death penalty have remained consistently lower than the rates in states and countries with the death penalty.
Assorted other desirable reforms in the criminal justice area should be considered, including greater reliance on community policing, greater emphasis on rehabilitation and community development, and, as discussed earlier, reform of drug and mandatory sentencing laws and replacement of for-profit corporate prisons with more accountable superior public institutions.
Our justice system is designed primarily to vindicate rights established by our elected officials. What happens when our "leaders" fail to establish or recognize an appropriate body of rights to begin with? For example, residents of the inner city don't find that the law and law enforcement is on their side against the business predators and loan sharks who take their earnings. Instead, the crooks are the ones who summon the law to enforce their rip-offs. So too, African Americans and Hispanics can testify that the existence of a well- designed justice system amounts to very little for those groups excluded, in whole or in part, from the very concept of justice.Persistent Inequalities
Many groups today still face high levels of discrimination. Women continue to receive unfair treatment in a number of areas. A study by the General Accounting Office, released in April 2004, shows that women's wages still lag substantially behind men's. Amazingly, the hourly pay gap has narrowed by just half a penny a year since the move for wage equality began in earnest four decades ago. At this rate, it will take another four decades for women to reach pay parity with men.
Congress should strengthen the Equal Pay Act by closing loopholes that permit discrimination, and should enact legislation prohibiting employers from firing employees who share their salary data. Enforced secrecy sustains inequality: Many women are unaware of discriminatory pay scales because they are prohibited from discussing their salary with coworkers.
Wage inequality is part cause and part effect of a larger phenomenon: gross inequality in economic and political power. Although women are well represented as students in colleges and professional schools, as they move up the ladder they eventually face the glass ceiling. The upper echelons of the business world remain virtually a males-only club, as indicated by some telling statistics: only 16 percent of partners in law firms are women, 16 percent of corporate officers, and 12 percent of Fortune 500 boards. Only eight Fortune 500 companies have female CEOs. Women represent 50 percent of the population, but just 15 percent of the U.S. Congress.
Such discriminatory patterns tend to reinforce themselves, depriving companies, consumers, and citizens of diverse viewpoints -- which result in less enlightened policies. We are also sending a depressing message to young girls that contradicts the official pieties about equal opportunity: The good old boy network remains a powerful force in America's economy and social and political life.
Women's professional advance is inextricably linked with their. personal freedom. Progress in the workplace would be reversed if we turn back the clock on reproductive rights. But while celebrating women's autonomy, we should not celebrate abortion. To the contrary, we should take reasonable measures to reduce the number of unwanted pregnancies. The debate over how to accomplish this objective has come to resemble a beer commercial ("less filling"; "tastes great"), with both sides shouting competing slogans ("abstinence"; "birth control") that rest on a false dichotomy. We need both to preach the virtues of abstinence and to educate young people about contraception, since it is unrealistic to expect everyone to heed lessons about abstinence. Equally important, we need to provide better support services for pregnant women and children born into poverty. One recalls Congressman Barney Frank's observation that some right-wingers believe that life begins at conception and ends in birth. Those who insist that every pregnancy should result in birth should not oppose the programs (such as infant nutrition and pre-K education) that give children a decent chance in life.
Progress for women in other areas is often less impressive than we're led to believe. For example, despite real gains under Title IX, resources for women's sports have never caught up to resources for men's sports at most colleges and universities. Women's athletic programs continue to lag behind men's by all measurable criteria. While 55 percent of our college populations are female, female athletes receive only 42 percent of participation opportunities, and 36 percent of operating expenditures.
Why are women still second-class citizens in athletics despite Title IX's promise of equality? Because laws on the books mean little unless adequately enforced. The federal agency responsible for enforcing Title IX, the U.S. Department of Education's Office for Civil Rights (OCR), has not initiated a single proceeding to remove federal funds at any school or college failing to comply. Instead, OCR has negotiated settlements that are usually far less than the law requires.
Gay men and lesbians constantly confront unequal treatment. The denial of same-sex marriage, much in the news lately, is only one example of discrimination based on sexual orientation. By denying gays marriage status (or at least a fully equivalent legal status), a state also denies gay couples access to scores of state and federal benefits -- pertaining to health insurance, hospital visitation, probate rights, tax benefits, and much more. The comprehensive package of benefits accompanying marriage makes it far easier to raise a family. Those who promote the fear that gays will do harm to children should instead recognize the harm to children of gay couples that comes from discriminatory laws making it difficult for such couples to provide for them.
Politicians who oppose equal rights for same-sex couples (which is most politicians, reflecting timidity as well as prejudice) go to great pains to deny any animosity against gays. For example, in his state of the union address, President Bush noted that "the same moral tradition that defines marriage also teaches that each individual has dignity and value in God's sight." But such rhetoric is unmatched by deeds. If the Republican Party truly cares about gays as individuals warranting proper treatment, why not protect them from discrimination in the workplace?
For ten years now, Republicans have blocked the Employment Non-Discrimination Act (ENDA), which would prohibit employment discrimination against gays (while exempting from its terms businesses with fewer than fifteen employees, religious organizations, and the armed forces). In many states, there is no legal remedy for workplace discrimination based on sexual orientation, even though firing or refusing to hire people because they are gay clearly fails to treat them. with the value and dignity the president claims they deserve.
Although ENDA exempts the armed forces, gays in the military deserve more protection. The "don't ask, don't tell" policy, a well-meaning initiative, has failed to reverse the policy of harassing and expelling gays. Those willing to take up arms to serve their country are the last people who should run up against government bigotry or acquiescence in private bigotry. (Many countries recognize as much, treating gays as equals in the armed forces.) The tombstone of Leonard Matlovich carries this inscription: "When I was in the military, they gave me a medal for killing two men, and a discharge for loving one."Attacks on Civil Liberties
Inseparable from civil rights are "civil liberties." Today, civil liberties are under siege from a president and attorney general (abetted by a panicked Congress that overwhelmingly passed the Patriot Act in the wake of the terrorist attack on September 11) who view violations of the Constitution by the executive branch as mere technicalities rather than a growing threat to the constitutional fabric of liberty, privacy, due process, and fair trials.
Of course, they are verbally reassuring about the "war on terrorism." President Bush says, "We will not allow this enemy to win the war by restricting our freedoms." Last September, Attorney General Ashcroft said, "We're not sacrificing civil liberties. We're securing civil liberties. " Then they swing into action, making arrests without charges followed by indefinite imprisonment without lawyers. They jail indefinitely "material witnesses," not accused of any crimes. To shove the courts aside, they need only call someone -- even an American citizen -- an "enemy combatant." That permits them to throw him into the brig without charges and without a lawyer, so no one can question the all-powerful White House prosecutors. Over two centuries ago, James Madison warned that "the accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, may justly be pronounced the very definition of tyranny." Imagine what Madison and Thomas Jefferson would think of the Bush administration!
What would they think of the dragnet law enforcement approach where everyone is a suspect until proven otherwise? With perfunctory judicial approvals facilitated by recent statutes, federal snoopers can secretly search our homes and businesses simply by asking a secret court for a warrant -- a court that rarely says no. The government can go to libraries and bookstores to find out what we've been reading and prohibit the librarian or storeowner from telling us or anyone about their demands. It can listen in on conversations between lawyers and their clients in federal prisons. It can access our computer records, e-mails, medical files, and financial information based on what is essentially an enforcement whim.
The Constitution's great phrase of restraint, "probable cause," has been swept away. Without "probable cause," government agents can covertly attend and monitor public meetings, including places of worship. Wantonly brandishing the word "terror," the Bush White House is becoming a law unto itself -- chilling Congress, intimidating Democrats, diminishing legal review, distracting the nation from domestic necessities, and draining the federal budget into a swamp of deficits to pay for a garrison state and its foreign adventures. And most important for Bush, attempting to frighten the public into his re- election.
To their credit, conservative Republicans have opposed some executive overreaching, such as a TIPS program (" Total Information Awareness Program") that would have enlisted millions of postal workers, delivery people, truckers, and service workers who have access to homes and offices to report on any "suspicious" talk or activities. Congressional conservatives and liberals, joined together to stop this crazy move toward a nation of snoopers, part of a Rumsfeldian fantasy of a gigantic computer dragnet of detailed information about all Americans.
Give George W. Bush credit for keeping one campaign promise -- to be "a uniter, not a divider." Bush has united liberals and conservatives in rising opposition to his government of men, not laws.
In this chapter, I've touched on some of the problems with our laws and legal system and proposed solutions that would provide greater protection to ordinary citizens and the most vulnerable among us. Yet rather than considering implementation of such measures, state and federal legislatures are busy working to restrict the rights of ordinary citizens and to protect wealthy corporations and professions, even though such immunities harm the public interest and result in more innocent victims. Meanwhile, in the name of protecting our liberties, the federal executive branch assumes junta-like powers. Does all this reflect a proper set of priorities? A well-functioning political process?