Matthew J. Parker: You Be the Judge

There’s a gallery of Judges lining the hallway between the East Court Building and the Central Court Building of the Maricopa County Superior Court Complex in downtown Phoenix – a laconic jury of oil-painted faces prominent above the obligatory black robes; faces sporting hard-knock looks, as befits those who’ve tackled law school, not to mention that idiotic LSAT. It was the LSAT kept me out of law school, the GRE from a PhD. Mandatory testing is the academic equivalent of mandatory sentencing. Those who can afford tutors and lawyers are in, and out, respectively, and the poor, as always, can get fucked. For these and other reasons I chose not to participate in either by earning an MFA instead. 

            I walked the hall of Judges for the first time in 2003, almost a year after my fifth and final release from prison. I’d been there to see about the partial restoration of my rights, which included voting. Rights in red states are rarely restored automatically. My first requirement was to fork over eight grand in fines. Since this was clearly beyond me the trip to the complex was little more than a recidivist dance with inescapability. Can’t pay a poll tax? Can’t vote. It was that simple.

I knew a lot of the judges back in my revolving-door days, but in 2003, dressed out in standard Arizona shorts and t-shirt (I would never, under any circumstances, appear before a judge dressed thusly), my flip-flops rat-tat-tatting cheerily on the shiny tile floor rather than doling out the stern-gaveled dirge one might expect beneath such austere gazes, there were few familiar faces. 

            I spent from 1987 to 2000 being led, shackled and leg-ironed, through those court buildings and never once saw the gallery of judges. They don’t walk inmates this way. Rather, we were buried in the back, sequestered in a series of tunnels and hidden hallways that meandered, ant-farm like, between courtrooms, holding cells, and the Madison Street Jail. I didn’t need the gallery in my incarcerated days because I had the real deal seated before me upon a raised dais – Greek statutes brought to life. Incarnations of Minos, perhaps, or Justitia. 

            I like judges, even those who had sent me to prison. I respect them, for one, but it’s more a love of both country and law – the former envisioned in the Declaration of Independence, the latter codified in the Constitution – even if the two don’t exactly mesh. Country is tangible. Concrete beneath the tread of oxfords. Or work boots. Law an abstraction – arguable and even malleable, like molten metal hammered into classrooms. 

            Or cages.

            Most important, however, is that law is scholarly. Infinitely so, and I’m nothing if not a scholar, the convict thing only a side hustle—a sort of autodidactic kindergarten for my adult reentry into higher education. Although I’m not a legal scholar, I know more about the law than most, for obvious reasons, and moreover can offer up a fresh if seldom-seen perspective – that of the insider let out and leering back in.

            Given this and other factors, law for me is personal, but a personal that applies to millions who’ve been traditionally silenced for decades. It’s in their honor, therefore, that I give voice now, and not just any voice, but rather a voice that is authentic, authoritative, underrepresented, and utterly exhausted by the sheer volume of hoop-jumping hurled my way ex post facto. The law may be scholarly, or arguable if you prefer, but justice never should be. Rather, it ought to come naturally, akin, perhaps, to Supreme Court Justice Potter Stewart’s description of obscenity; “I know it when I see it.” 

Sadly, however, this is seldom the case. The Bill of Rights was written (at least partially) to protect citizens from the whims of states; states which have more than passing self-interest in policing or, as is too often the case, over-policing its charges. Historically, states (whether these United or otherwise) are naturally geared toward guarded authoritarianism (hence the term police-state) and justice be damned. This our Founding Fathers knew full well, and not because of some abstract legal argument, but because they lived it. Every signatory of the Declaration of Independence was under a death sentence the minute they put quill to parchment. What made the document revolutionary was not just its ideas, but more that those ideas – embodied on a single-page which predated the Constitution by twelve years and the Bill of Rights by fifteen – were worth dying for, whether on the battlefield or the gallows. That’s how revolutionary that document was – indeed, is. Christopher Hitchens sums it up nicely: 

“And there was something more: the crucial four words in the greatest of all documents. The pursuit of happiness. Just to name that is to summarize and encapsulate all that is detested by the glacial malice of fundamentalism and tribalism. That’s what they can’t stand. They confuse it with hedonism and selfishness and profanity, and they have no idea. No idea at all.”

Hitchens recognized the colossal shift in thought that the Declaration of Independence represented; to where the revolution it kickstarted was just an inevitable byproduct. Nobody, and certainly not Geroge III, was going to fork over that kind of liberty without a belligerent emancipation of blood. The Founders knew this as well as the stakes: You win, you’re a hero. Lose, an insurrectionist. It’s that simple. One need only be willing to put one’s balls on the block. If we were defeated in the Revolutionary War the Founders would’ve been hanged, thousands of free thinkers imprisoned, the Declaration of Independence burned, and the United States forgotten. 

            Following in its bootsteps was the Bill of Rights, which ordered the Declaration’s abstract concepts into a simple list. Conceived to protect citizens from the police, and not the other way around, that bill provided a goodly portion of what a nascent free society needed. Morre than a mere afterthought to the Constitution, its detractors claimed it was unnecessary. But liberal Thomas Jefferson and federalist James Madison were unrelenting in their insistence upon its inclusion. On December 20, 1787, the former wrote to the latter that “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.” But their fight to add codified rights into an already-ratified Constitution was much more intense than most realize. Of the seventeen original amendments, only ten were confirmed. Those ten are what’s known as The Bill of Rights. We’ve since added seventeen additional amendments and are due for a few more – abolishing gerrymandering and the electoral college, for starters.

            In his Declaration, Jefferson asserted that natural rights are unalienable, which means that those rights cannot be taken away, by anybody, no matter how many empty-headed citizens vote to do so, which affirms a flaw in our system. To paraphrase Plato, democracy hands power to the stupid. The rights put forth in that bill are meant to immunize citizens from collective idiocy, and it’s worked, more or less, for over two centuries. Although flawed like its authors, the greater part remains integral despite the fact that it’s been shot full of holes by insipid and malicious alike. 

And the holes are why our rights feel so threatened these days. Far too many of those sworn to defend it – from cops to prosecutors to judges to congresspersons to the president and every flag-waving novice in between – often do their fuck-it-all best to defy its most basic edicts. My felony fines, for instance, are a viable revenue source for yet another cash-strapped Red State that would just as soon burn the Bill of Rights than raise taxes. Left unsaid is that, under double jeopardy, the fines are unenforceable. If they made me pay them, I could challenge the law as unconstitutional. But they don’t. Rather, they’re used as leverage to administer numerous unconstitutional practices against me and other felons – most recently, 1.4 million ex-cons in Florida who, in 2018, had their voting rights restored by 65 percent of voters. But Florida Republicans, in a blatant bid to re-disenfranchise them, passed a law mandating that all fines and fees be paid in full by any felon who wants to vote. The law was challenged and, predictably, the Supreme Court voted for the cold-rolled cash over the equal protection of both felons and voters.  

The Bill of Rights was supposed to serve as a buffer against this kind of malfeasance. The problem, however, is that it’s open to interpretation. Opinions, legal and otherwise, are crazy difficult to administer. Take the double jeopardy clause of the Fifth Amendment mentioned above. Squeezed in there among more popular jurisprudence like protection against self-incrimination and due process, double jeopardy’s a pretty straightforward concept; “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” This means you cannot be tried again after an acquittal, a conviction, and certain mistrials. But it also protects against multiple punishments by establishing a defendant’s interest in finality.

            This last is an obscure but crucial legal concept. When is an ex-con’s debt to society paid in full? On paper, it’s when he or she is off paper, aka parole. But again, there’s that parchment-thin Bill of Rights propping it up, so thin it exposes the layers of bullshit lawyers and others have been arguing both for and against since its inception. In those states which love to disenfranchise (guess which ones?) they always tack on that fine – in my case, four fines, one for each prison sentence: $2,000 apiece plus court costs. I might have set up financing, but it would’ve taken me years to pay off, during which I still couldn’t vote. Moreover, in my jailhouse-lawyer judgement prison plus fine easily defies the double jeopardy clause. In short, they want me to pay them to violate my constitutional rights. Pardon me (pun intended), but I’d lick Trump’s bogusly bone spurred feet rather than surrender a single nickel. It’s a rare day indeed when an ex-con can tell the entire Arizona Department of Corrections along with the cops, courts, and politicians that prop them up to eat J-Jon shit. I did my time so stuff your fucking fines. 

            But it’s deeper than that. I can’t challenge the State of Arizona on the constitutionality of attaching fines to prison sentences simply because I’m not forced by law to pay them, which allows Arizona and other of these United States free reign to use the nonpayment of those fines to leverage punishment in other areas, with denying me and close to 4.6 million other ex-cons the franchise at the top of their list – but only in pissant-red Republican states, just in case you needed another reason not to vote for them.  

            And that’s just one of the many hoops that us ex-cons are expected to hurdle. Can sending a poor person to prison and fining him excessively also be construed as a violation of equal protection, especially when the rich can buy their voting rights back upon release? You be the judge in this case. You interpret the law. Are the fines a poll tax? Is barring a person from voting a form of punishment? What about legalized discrimination levied against ex-cons in housing, employment, municipal and state services, even student loans? You have the honor, your Honor. Gavel us up some pro tem jurisprudence. Who knows? Maybe they’ll tack your portrait onto a marble wall someday.

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 Copyright 2024 Matthew J. Parker

Matthew J. Parker teaches writing at UCLA Berkeley.