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.
