Justice Requires Heart

Delaware’s criminal justice system is facing pivotal decisions. Over several decades, Delaware has been attempting to solve many problems by criminalizing a vast new array of actions, resulting in a hugely expanded prison population, with crises at every stage in the system.

In a high trust society, people have a strong role in judicial proceedings, and generally speaking the need for the proliferation of laws doesn’t exist, because there is confidence in the ability of a human being to interpret existing laws, and recognize motivations so as to administer justice. However, in recent decades, the laws have proliferated in an effort to define more and more precisely every possible action that is deemed unlawful. Justice has been replaced with the quest for law and order.

The rule of law may have run its course, in its present form. Delaware has many people in high positions within the criminal justice system who have recognized that our system has serious problems, and are working hard to make positive changes: our Chief Justice Leo Strine, our Chief Magistrate Alan Davis, our Public Defender Brendan O’Neill, even our Attorney General Matt Denn.

Our law is based upon Roman law, which derives partly from the laws of the Old Testament. However, there has always been a law with a different base, the law of indigenous peoples, which is based on one’s identity as part of a community. Today we see the need to reclaim something of this approach, because if we don’t move into a law based on heart and universal love we cannot solve our current dilemma.

The fundamentals of our law are unbalanced, heavily skewed towards the masculine, punitive approach, expressing in no small degree the doctrine of survival of the fittest. Native American law is based on the ideal of the harmonious society. Elders of a tribe are involved in seeking ways to restore balance between the perpetrator and the person wronged. When Europeans came to this new world, they could have embraced the best of both justice systems, instead of which the adversarial and punitive approach won out completely.

We are living with the results of that decision right now, and have reached the limits that a society can maintain and still remain a nation.

Before we move any further along the road towards greater punishment and stronger laws, we need to stop and take stock of where we are, and how we can express in our justice system that each person has intrinsic, unique value. We need to ensure that the feminine voice is heard loud and strong, reflecting the realistic and fundamental change in the role of women in our society. Wherever you look today in Delaware you will find women on the front line of change.

Given the lack of confidence in the current state of the criminal justice system, why are we in such a hurry to resurrect the most extreme and irreversible punishment, the death penalty?  There was no outcry from the people when the death penalty was declared unconstitutional last year and yet immediately a group of lawmakers vowed to reinstate it. It would seem we have a great deal of work to do to restore justice to our justice system, which makes it very premature to focus on killing criminals.

The culture of policing today tends to define reality for a young law enforcement officer more than any ideals which drove him or her to enter the profession. Guns on both sides, the use of force as routine, the conscious or unconscious racial biases, all affect what can be achieved in terms of justice. It is understandable that those lawmakers who are ex-law enforcement officers may feel the call to restore the death penalty, because it feels like every effort has been unsuccessful, but maybe that is because we need a restored sense of community, based on reconciliation, not more punishment.

We need our legislators to be the ones leading the reforms, so that huge numbers of Delaware residents do not routinely find themselves in desperate situations which can drive them to desperate acts. It seems morally questionable at best to focus on the death penalty while there is real desperation in so many of Delaware’s communities. After all, the death penalty itself can be resurrected later, if people still feel the need after reforms have been implemented, unlike those put to death in such excessive haste.