LISTSERV "Hal Pepinsky"
NEW WORLD ORDER DIARY
Hal Pepinsky
September 2, 1993
DYNAMICS OF A MIDEAST PEACE ACCORD
Peres and Arafat have about wrapped up a peace prize for themselves in the
Israeli-Palestinian accord about to be signed. For one thing, it appears
that the Norwegians (who award the peace prize) brokered the negotiations.
For another, the accord stands in stark contrast to the frustrated
settlement of other wars. The only comparable breakthrough is Mandela and
DeKlerk's election agreement in South Africa, but I would think Norwegian
prudence would incline them to wait until after the election is past to
celebrate peace there.
Norway is my closest home away from my national home. This is not the
first time I have been struck by the international influence of this
nation whose population is less than that of the state of Indiana where I
live. The fact that they have not sent troops abroad to fight since 1821
gives them credibility. Norwegian influence redeems my belief that one
need not be big and powerful--personally or as a group--to play a big role
in making peace.
In the country of my birth I am struck by what a dramatic break from our
recent past in diplomatic approach Warren Christopher represents as
secretary of state. His style in cultural terms is far more Norwegian
than Anglo. He stands in the background talking about the settlement. He
cautions that the settlement process will be prolonged and difficult--that
the accord is just one "confidence builder" along the path to peace. He
expresses willingness to help as the need arises. He does NOT claim
credit for the accord. He does NOT dictate terms. This gives the accord
a chance to belong to the parties directly involved, rather than being
something the U.S. has "led" the parties to. In sum, Christopher's style
is to work WITH other diplomats rather than FOR or ON them. This
frustrates the militarist in us that believes it is up to us who care to
intervene unilaterally to stop the fighting and impose a settlement,
notably now in the former Yugoslavia. It means you don't hear Christopher
talking about how Mohamed Farrah Aidid is the personal source of problems
for U.S. interests in Somalia as others do. It means the media don't pay
much attention to what Christopher et al. ARE doing. King Bill may make
militarist moves like sending in the Delta Force to "search and seize"
Aidid (then what!?), but it appears that he also, quietly, allows his
secretary of state wide latitude to do his thing. If Christopher gains
recognition for being there when the course of U.S. diplomacy
fundamentally shifted direction, it will probably be "discovered" by
revisionist historians long after Christopher is dead and gone.
Of more immediate interest for modeling the peacemaking process is that
while the accord is a greater break with past rhetoric and action for the
Israeli government than for the PLO, Israeli supporters and U.S. media
broadcast that it is Arafat who has made the "courageous" break with his
past. Arafat renounced violence to redress Palestinian grievances some
time ago. The Israeli govt. responded by refusing to allow PLO
representatives to be at the bargaining table with them, then tried to
dictate terms for how Palestinians chose their negotiators, all the while
casting Arafat and the PLO as villainous enemies. Here is my
generalization: When terms of accord are reached among warring parties,
the militarily/politically stronger of the parties will be allowed to
declare that the settlement vindicates them, and is a concession from the
other side. This has to be a two-way street (and indeed it appears that
many Palestinians are celebrating the accord as an Israeli concession),
but in public discourse the more powerful party's self-satisfaction will
get wider publication. This is the principle underlying consent decrees
in U.S. administrative law--that you don't have to assume blame in order
to agree to come to terms with your accuser. (The fallacy in
administrative process is in assuming that an accord is a settlement--the
complacency Warren Christopher warns us against.) This is what happens in
accords I help reach as in advising grievants against various groups of
instructors or employers at IU. A faculty union organizer from Florida
advised me a decade ago, "Always thank the administration when you get
something from them you want." In non-violent resistance against
hierarchy, it doesn't pay to claim victory or vindication in a struggle
against those higher in the power structure. The claim only drives the
other parties to get even down the line (as our local cable tv company is
doing, raising our rates to meet the requirements of a law last year
widely balleyhooed as cutting cable costs to customers). This is just the
kind of response to power plays Bill Powers predicts in perceptual control
theory (isn't it, Bill)?
I see the accord also as a product of the dynamics of intergenerational
transfer of power I have so often discussed. Arafat becomes a trustworthy
candidate for accord to Rabin and Peres because their battles with one
another are a generation apart. Age and experience, and the threat that
young people will take over and do god knows what to the legacy of their
struggle, makes understanding now with one's ageing peers more trustworthy
than leaving settlement entirely to one's heirs. It also presents the
pressure of capping a career of struggle with a monument to the fruits of
one's efforts. At the same time it was fascinating to see Rabin visiting
Palestinian and Israeli children in the Occupied Territories--as though
they best understood accommodation and peacemaking, and as a symbol of the
ageing generation's contribution to their heirs. The same dynamic of
reconciling with one's old enemies before the new generation can mess
up one's work applies to Mandela and DeKlerk's election accord.
Intergenerational transfer of political power is a crisis point in
violence and peacemaking. Accords will be reached, and other elements of
the old generation of leadership will fight on with greater desperation
than ever (just as police in my community are now fighting the drug war
with greater desperation than ever before, now that the White House has
reduced the budget priority of that war from the top to the bottom of its
list). As one must expect waves of reactionary rhetoric and action during
these periods, so the opportunity presents itself to reach significant
accord in generation-long grievances. This would for instance explain
why, as Thomas Mathiesen finds, that law'n'order gives way to sudden major
declines in prison population just as public discourse seems to have
become more reactionary than ever.
"48 HRS." DOES A REPRISE ON THE DEATH PENALTY
I feel the same way about the rerun of a "48 Hrs." documentary on the
death penalty CBS ran last night. Last year they ran cameras and carried
on interviews with all manner of parties to deciding whether a fellow
named Otey in Nebraska, convicted of rape-murder in 1978, ought to be the
first person executed there in thirty years. (They repeatedly show
preparation, testing, and eventually dismantling of the electric-chair
apparatus, with the warden's commentary as he turns switches and watches
his voltmeter and ammeter.) The show begins with a clemency hearing in
June 1992. The Nebraska constitution provides that clemency is to be
decided after a hearing by majority vote of the state's attorney general,
governor, and secretary of state. The last day of June the "board" votes
2-1 against clemency and issues a death warrant to be executed a day
later. Otey's lawyer springs into last-minute action, buys a few hours by
finding that not all members of the board have signed the death warrant,
and then finds an issue that first delays the execution until the state
supreme court clears the way, and now delays the execution while a U.S.
court of appeals hears the defendant on the issue. Marla Sandys, my
death-penalty research colleague here in the department, tells me the
commentary at the end of the show was new: Dan Rather concludes by
wondering how long death-penalty appeals should be allowed to drag on. On
its face, the show comes across to me and to Marla as support for death-
penalty proponents--a force for execution.
There's the surface rhetoric. I find another underlying reality though.
It has taken a long time for most death-penalty states to get started
executing prisoners since the U.S. Supreme Court gave the green light to
capital punishment once again in 1977. I don't know the numbers offhand,
but only a handful of states routinely execute their death-row prisoners,
and many, like Nebraska, haven't gotten started at all. As against the
two murder victim's family members who testify at the clemency hearing,
and together with the prosecutor and attorney general call for the
execution to proceed, the show airs clips of a variety of the sixty
witnesses who testify on behalf of clemency. Otey's lawyer begins by
working alone. He ends up as of the fall of 1992 with a large team of
local lawyers volunteering their time to help the cause. After the
clemency hearing and before the vote, the secretary of state tells CBS his
six-year-old son has just gone to bed asking him not to kill anyone, and
he does in fact vote for clemency thereafter. The growth in numbers and
commitment of death-penalty opponents stands in contrast to the lonely
frustration of the victim's mother and sister, the prosecutor, and the
Attorney General. And Otey is still alive. The powerholders seem to be
losing the struggle just as CBS seems to be rallying to their cause. And
the show helps explain what to me has been a largely abstract miracle--how
executions could so continually and persistently be delayed by dedicated
legal appellate work.
As to the matter of whether delay should be tolerated itself, I find it
striking that the last-minute issue still before the federal court's in
Otey's case is a serious issue (which indeed the U.S. Supreme Court itself
voted 6-3 to stay the execution to have heard in federal court). The
prosecutor arguing against clemency works for the attorney general who
votes on the board. This gets mildly referred to as a conflict of
interest in the show; indeed it is a strong guarantee that one board
member will vote whichever way the state argues at the hearing. Since
these days it is virtually inconceivable that counsel for the state will
argue for clemency in any case in the U.S., this means that the prisoner
has to win a 2-0 vote for clemency among overtly uncommitted board
members. Since the attorney general's vote is dictated by the state
constitution, it is unlikely that the state supreme court will invalidate
the vote. (I haven't researched how often state supreme courts have
invalidated provisions of their own state constitutions on grounds they
conflict with a valid U.S. law, but I don't imagine it happens often if at
all.) Thus, a really serious issue of whether clemency is loaded against
prisoners in Nebraska remains for federal courts to consider (and to me in
a sane world, to invalidate the Nebraska clemency procedure). I also
presume that the power of clemency has to be provided somehow, as a matter
of fundamental fairness under common-law tradition. But of course that is
no reason in itself to expect federal courts to rule my way. (As people
are saying on the perceptual control theory network, cognitive reasoning
doesn't account fully for behavior.) In legal practice as in everyday
life, people at late crisis points often think of important considerations
they completely overlooked earlier. I myself have repeatedly have had
that "How could I be so dumb as not to have seen this earlier!"
experience. In the peacemaking view of justice, what matters is not how
much earlier one might have known what one now realizes, but acting on the
realization once it occurs. Haven't we all found ourselves feeling shame
that we have just learned what should have been obvious to us long ago?
At that point the only barrier to justice is to presume that because
decisions or "solutions" have to become final, you cannot act on what you
know now that you know it. Giving way to finality is a recipe for social
insecurity and living out of ignorance. It's not only that it ain't over
till it's over. It's that you get in trouble by regarding anything as
"over." Which also means that it is misguided to place one's faith in
giving murderers life sentences without possibility of parole. There's no
telling how people will feel about living with the murderer in the future
until the future has arrived. What I would celebrate about substituting
life without possibility of parole for the death penalty is that life
without possibility of parole can somehow be modified by unforeseen
political forces as long as life remains. Still, when the issue arises,
I am unwilling to lie and say I think life without possibility of parole
is literally possible, let alone desirable.
Otey's defense attorney made a sad attempt to talk to the victim's sister
and reassure her of his concern for her loss. The sister ended up blaming
the lawyer for her pain. This lawyer had no prior experience in death-
penalty work. Marla tells me experienced death-penalty lawyers make a
point of continuing contact with murder victims' family members, and often
win respect for keeping the survivors better informed than the state does.
Beyond that, rather than prevailing over family members who want murderers
executed, I think peacemaking requires that we take time with them to
share the experience not only of vengeful survivors, but of those who have
faced their murderers, and among those, survivors who have come to dream
more of the victim as the victim lived than as the victim died in the
process of forgiving the murderers. Rather than patronizing survivors by
sympathizing with their quest to kill the murderers, I think we owe them
the honesty of sharing with them the experience of all manner of
survivors--from those who forgive to those who have watched their
murderers die. Political correctness aside, I see no more prudence in
supporting the vengeance survivors seek than in supporting continued
drinking by an alcoholic family member. Indulging vengeance only deepens
pain, anger and depression as far as I can see.
NO HAL, YOU CAN'T REVOLUTIONIZE POLICING IN INDIANA ON ANY LEGAL PRETEXT;
GIVE IT UP
Repeated experience with the complexity of peacemaking processes tempers
my lingering expectations that you can win an institutional revolution by
using the law. On the face of it, an opportunity to revolutionize police
practice throughout my state of residence came to me this week as never
before. An IU bus turned across the bow of the old car I use while my
daughter was driving last Saturday night. When I got the police accident
report Monday, I had to pay the city police $5 for one piece of paper
xeroxed front and back. I hadn't expected to pay anything. The police
records person pointed to the sign on the front door that told me I'd have
to pay.
Time was when I was pretty familiar with the Indiana Public Records Law.
It dawned on me that it forbade public agencies for charging more than
a nominal amount for copies of records. Yesterday I looked at the law,
and sure enough, accident reports do indeed seem to be public records, and
the law forbids charging more than actual copying costs. I called the
police HQ, and got the recordkeeper who reminded me about the sign on the
door. I protested that the charge was against the law. The chief
happened to be standing beside her, and he relayed a number for me to call
the state police to verify that the charge was legitimate. The state
police recordkeeper verified that police all over the state charge
comparably. She told me she didn't make the law, and that I'd have to
check with someone who new about law if I wanted the practice explained
further. She did tell me she had never heard my question from anyone
before. So I called the city legal department. The receptionist took a
message. A staff lawyer called me back, and told me she had found two
laws on the subject: a city ordinance laying a $5 charge on copies of
documents to the public, and the state law as I had found it. Then she
stopped. Nonplussed, I stammered a bit asking her whether the ordinance
took precedence over the state statute. She said I'd have to take that up
with the city council counsel, whom I got to know about four years back
when he served as public defender for the guy I later took home from the
state farm. (See the feminist justice letter's description of how I met
Debbie Williams and Mary Cunningham at Emily Wade's house trailer.) It
was Dan's job now to check on whether ordinances needed revision. Dan was
good about taking down the statutory references I offered. He told me
he'd now refer the matter to the city legal department to determine
whether the ordinance needed to be changed. I thanked him and said, "At
least I've closed the loop" (as all the feedback loops Bill Powers has
been discussing came to mind). He laughed and told me not to bet on it.
On the face of it, the city council might be expected promptly to repeal
the ordinance, and then even advertise how they found the problem before
anyone else and show the whole state how to obey the law. The dynamics of
peacemaking and change I have just described for the Mideast and for
capital punishment in the U.S. suggest otherwise. It's not only that
we're in an antidisestablishmentarian mood where officials generally dig
in their feet against change. It's also that police chiefs just now are
struggling to maintain their shrinking budgets, as reflected with the
vehemence and flashiness with which local police are fighting drugs on our
behalf. Even before I thought of the public records law, I found myself
thinking that my police department was probably raising substantial
revenue from the fee, and wondering where the money goes.
Here's one more interesting to see how change happens...and doesn't.
LOCAL BULLETIN: WATCH FOR SUNDAY'S PAPER ON THE DRUG WAR
Yesterday Dan Combs told me the local newspaper is doing a big spread on
excesses and corruption in the local drug war this Sunday. He also tells
me the chief has drawn up a hardline, "zero tolerance" drug-war policy
which the mayor has accepted. Since she controls the public safety board
(they, like the chief, serve at her pleasure), this amounts to
stonewalling public criticism of police behavior. The mayor and chief
ought to know that once the press gets this stirred up, the police get all
shaken up in a corruption scandal, the chief gets axed, and the proactive
war on crime eventually gets (quietly) called off. My theory tells me
that the hardening of the chief and mayor's position is a misleading
portent of things to come.