When The Color Of Law Is Gray

In a New York Times op-ed, Brandon Buskey, a staff lawyer with the ACLU, stirs the pot against the target of a suit in which he’s lead attorney. This little detail is artfully acknowledged in the text, so artfully that it doesn’t strike the reader that this is a problem. A very serious problem.

Judge [Marcus D.] Gordon has robbed countless individuals of their freedom, locking them away from their loved ones and livelihoods for months on end. (I am the lead lawyer in a class-action suit filed by the American Civil Liberties Union against Scott County and Judge Gordon.) In a recent interview, the judge, who sits on the Mississippi State Circuit Court, was unapologetic about his regime of indefinite detention: “The criminal system is a system of criminals. Sure, their rights are violated.” But, he added, “That’s the hardship of the criminal system.”

The paragraph is chock full of really bad stuff about Judge Gordon, so that the parenthetical about the author seem almost subliminal, falling below the threshold of conscious recognition. But there it is, as big a horse in the race as can be, and describing the allegations against the defendant with words that are tantamount to a confession.

Not to question Buskey’s claims, but the place to make his case is in court, not the newspaper. The Times editors lack remedial powers, though you might suspect they’re unaware of that fact.

Based upon the brief anecdote, Judge Gordon seems to confirm our worst fears of Mississippi “justice,” the deliberate and knowing refusal to afford constitutional rights mixed with a bizarre pride in the righteousness of his actions.  He seems like the poster judge for invocation of a law enacted in 1948, 18 U.S.C. § 242, deprivation of rights under color of law.

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be . . . [punished by fine and/or imprisonment].

The prohibition isn’t a blanket for all, but for those who suffer “different punishments, pains, or penalties” based on race, color or alienage, from citizens. It doesn’t apply to the deprivation of constitutional rights to everyone. It doesn’t apply to the deprivation of rights based on people being “criminals.” Bear in mind the brief quote from Judge Gordon:

“The criminal system is a system of criminals. Sure, their rights are violated.” But, he added, “That’s the hardship of the criminal system.”

Had he said he violated rights because defendants were black, he would have admitted his crime. But he didn’t. It’s not that what he said was fine. It’s horrible. It’s a flagrant violation of due process. What it does not appear to be, however, is a violation of 18 U.S.C. § 242.

Then Buskey goes on to further obfuscate the law.

This isn’t some dusty, rarely used legal tool. The Department of Justice typically wields Section 242 against police and correctional officers accused of physical or sexual violence. But Section 242 applies with equal force to those who prosecute and sentence, the state officials whose deliberate skirting of civil rights can be most devastating.

So the DoJ is quietly running around using Section 242 all over the place?

At least, that’s how it is on paper. The federal government has not in recent memory pursued a judge under Section 242, and it has only rarely enforced this law against prosecutors.

Oh wait. So they don’t use Section 242 much at all. Which is it?  What it would appear he’s trying to say is that Section 242 is used against police officers, but not against judges and prosecutors, and he argues that this is wrong, even as he flips back and forth between these three very different cogs in the wheels of justice, culminating in this gap:

However, the government’s focus on abuses by law enforcement officials leaves the burden of curbing abuse by judges and prosecutors to private individuals.

This is a responsibility few lawyers are willing to accept, in large part because the United States Supreme Court has made pursuing a civil case against a prosecutor or judge practically impossible.

Well, yeah. It might have something to do with the fact that most lawyers don’t get a paycheck from the ACLU, so the absolute immunity is kind of a bummer and prevents lawyers from taking cases that are, as a matter of law, totally unwinnable. Go figure.

So, Buskey orthogonally notes, if the Supreme Court has made direct suit against judges and prosecutors almost impossible to maintain, what about Section 242?

Last month, the Department of Justice provided a rare glimpse of the law’s untapped potential. A Missouri prosecutor pleaded guilty under Section 242 of concealing police officers’ brutal assault of an arrestee, then prosecuting the victim on charges the officers fabricated to cover up their crime.

A great prosecution. A great win. A great victory against an evil and malicious prosecution. But of what relevance to anything else?  Missing here is the fact that only prosecutors prosecute. Bliss Worrell was not merely that prosecutor who shamelessly did wrong, but who got caught at it. Once caught, there was no way out, no excuse or explanation to cover up what she did. So she went down.

But this is where Buskey misses the distinction between Worrell and the potential for using Section 242 on an hourly basis as a substitute for civil action to be brought by private parties against public officials who punish based on illegal discrimination:

Missouri marks a promising, yet incomplete mandate. Judges and prosecutors violate civil rights every day, in plain sight, and with seeming impunity. To make them answer for these crimes, the federal government must continue to extend its reach beyond the streets and into the courtroom.

Violating civil rights happens “every day, in plain sight, and with seeming impunity.” And it rarely implicates Section 242.  Not only is this hardly a solution, but to suggest this red herring in the gray area of conflicted intent is to distract attention from the root problem of immunity as reflected in the nightmarish Supreme Court decision in Connick v. Thompson precluding use of 42 U.S.C. § 1983 to attack prosecutorial and judicial wrongdoing and obtain relief.



6 thoughts on “When The Color Of Law Is Gray

    1. SHG Post author

      You are now on double secret probation for having violated both the link rule and the off-topic rule. GUIDE YOURSELF ACCORDINGLY!

      1. Rendall

        Govern. I believe required legal phrase is “Govern yourself accordingly.” You went to law school. You should know that.

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