By Justice Clarence Thomas
The following is excerpted from a speech by U.S.Supreme Court Associate Judge Clarence Thomas on May 16 at a conference in Washington D.C.
September 1994 – So far during this conference, you have been investigating two aspects of the “rights revolution” – that is, the legal revolution of the past 30 or so years in creating and expanding individual rights.
The first is how the judicial expansion of due process rights has affected the ability of communities to manage local institutions such as public schools and housing projects. Our courts held that government could not suspend students from public school or evict tenants from public housing without hearings and other procedures designed to ensure fairness, individual dignity and a sense that justice has been done, whatever the outcome.
The idea here was that for the poor and minorities, government assistance and the benefits derived from public institutions were forms of property that guaranteed well-being. Many, therefore, argued that to expose these benefits to arbitrary and unregulated state power would rob the under-represented in our society of their one source of dignity and personal security.
The other aspect of the rights revolution that this conference has been exploring is how judicial interpretations of the First Amendment and of “unenumerated” constitutional rights have affected the ability of urban communities to deal with crime, disorder and incivility on their public streets. Vagrancy, loitering, and panhandling laws were challenged because the poor and minorities could be victims of discrimination under the guise of broad discretion to ensure public safety.
Moreover, as a consequence of the modern tendency to challenge society’s authority to dictate social norms, the legal system began to prefer the ideal of self-expression without much attention to the ideal of self-discipline or self-control. What resulted was a culture that declined to curb the excesses of self-indulgence.
Drugs, Violence Besiege Children
Clearly, how these aspects of the rights revolution have affected those who live in our urban centers are important issues of our day. Young children cannot learn in schools if they are besieged by drugs and constant threats of violence. Nor, for that matter, can they lead normal lives if so many street corners, sandlots and apartment buildings are fixed places of business for drug dealers and other criminals.
How can the parents or older brothers and sisters of these children lead productive lives if economic and educational opportunity are stymied by rampant community violence and disorder? If they can’t walk or drive down a street without fear of being shot or assaulted?
Providing extensive hearing rights for the student who carries drugs or weapons to school, or for the drug pusher or gang member who occupies public housing, is more than a mere abstraction. These decisions have incredibly significant effects on the ability of school principals and tenant organizations to enforce standards of decency and conduct....
There needs to be debate about some important questions here. What are the real- world effects of the due process revolution on the self-determination and well-being of our inner cities? Would the lawyers and judges making these rules want to live under the conditions that so many in the inner cities live? Is there a moral basis for a restrained judiciary that proponents of the rights revolution have neglected to consider?
With that said, I want to talk to you today about a different, but equally important, aspect of the rights revolution – namely, how the current state of our criminal justice system has affected the ideal of personal responsibility.
Why is holding people accountable for harmful behavior important to us? Three reasons strike me as especially convincing: persuasion or deterrence, respect for the individual who violates the law and payment of a debt to society.
Let’s begin with the most practical reason for why we hold people accountable. The law cannot persuade where it cannot punish. Alexander Hamilton made this very point when he observed, “It is essential to the idea of a law that it be attended with a sanction... a punishment for disobedience.”
To be sure, we choose to honor speed limits because such behavior might well save our own lives. But we just as surely follow the rules because of the legal consequences of speeding – harsh fines and possible loss of our licenses.
Some underscore a different aspect of human nature in explaining why holding people responsible for their actions is central to our criminal justice system. Unlike any other living creature in the world, humans are moral, rational and thinking beings. We, therefore, expect one another to be able to distinguish between right and wrong and to act accordingly.Thus, when society punishes someone for breaking the law – when it holds him accountable for the consequences of his acts – we are recognizing that only mankind is capable of being moral or rational. We are, in short, acknowledging the human dignity of our fellow man.
Violating Society’s Civilizing Trust
There are others who believe that the principal reason we hold people responsible for the consequences of their actions is our mutual political or social obligations in a civilized, democratic society. In accepting and benefitting from the wonderful opportunities of our free society, we each consent or agree to be bound by the rules and expect government to enforce them. When someone breaks the law, a fundamental trust has been violated.
On this view, we punish the criminal because he owes a debt to society for violating our trust. To do otherwise would cheat those who abide by law and dilute the threat of force that the law is supposed to convey.
For these and other reasons, then, I think most everyone agrees that we have a criminal justice system in order to hold people accountable. If properly administered, it stands to reason that the criminal law should help to ensure a greater degree of personal responsibility in our society.
Put differently, the criminal law serves a signaling function when we hold people accountable for their harmful acts. Punishing people is an expression of society’s resolve that certain behavior will not be tolerated....
One must wonder, though, whether our criminal law is carrying out this signaling function. Why are so many of our streets rife with drug bazaars and other criminal enterprises? Why are so many of our schools devoid of the discipline that is necessary for a healthy learning environment and instead plagued by lawlessness? Why is there unprecedented fear of violence among so many of our fellow citizens?
The Rights Revolution Blamed Criminal Law
One reason, I believe, is that the rights revolution worked a fundamental transformation in our criminal law. The very same ideas that prompted the judicial revolution in due process rights for the poor and that circumscribed the authority of local communities to set standards for decorum and civility on the streets or in the public schools also made it far more difficult for the criminal justice system to hold people responsible for the consequences of their harmful acts.
I want to focus on one particular force behind the rights revolution that, in my view, had the most profound effect on the direction of the criminal law: namely, the idea that our society had failed to safeguard the interests of minorities, the poor and other groups; and, as a consequence, was, in fact, primarily at fault for their plight.
Much of the judicial revolution in individual rights was justified on the ground that the dignity and well-being of large segments of our population – minorities, women, the poor – were consistently ignored by our social and political institutions.
So, too, were the poor viewed as victims. These concerns greatly influenced our courts in requiring that government hold hearings or comply with other procedural requirements before terminating public benefits received by minorities and the poorest of Americans.
Procedural protections also were viewed as necessary to ensure that government interference with public benefits was not arbitrary and unfair. Because minority and disadvantaged students are the most frequent objectsof school discipline, for example, advocates of greater constitutional protections insisted that the absence of stringent procedural requirements for suspension could lead to racial discrimination and other forms of unequal treatment.
We can see, then, how the intellectual currents of the legal revolution in individual rights affected the management of community institutions such as schools and the civility of our streets, parks and other common spaces. But how did the ideas underlying this revolution affect the functioning of the criminal justice system?
Many began questioning whether the poor and minorities could be blamed for the crimes they committed. Our legal institutions and popular culture began identifying those accused of wrongdoing as victims of upbringing and circumstances.
The point was made that human actions and choices, like events in the natural world, are often caused by factors outside of one’s control. No longer was an individual identified as the cause of a harmful act. Rather, societal conditions or the actions of institutions and others in society became the responsible causes of harm.
‘New Way of Thinking’ Erases Accountability
These external causes might be poverty, poor education, a faltering family structure, systemic racism or other forms of bigotry, and spousal or child abuse, just to name a few. The consequence of this new way of thinking about accountability and responsibility – or the lack thereof – was that a large part of our society could escape being held accountable for the consequences of harmful conduct.
The law punishes only those who are responsible for their actions, and in a world of countless uncontrollable causes of aggression or lawlessness, few will have to account for their behavior. As a further extension of these ideas, some began challenging society’s moral authority to hold many of our less fortunate citizens responsible for their harmful acts. Punishment is an expression of society’s disapproval or reprobation. In other words, punishment is a way of directing society’s moral indignation toward persons responsible for violating its rules.
Critics insisted, though, that an individual’s harmful conduct is not the only relevant factor in determining whether punishment is morally justified. The individual’s conduct must be judged in relation to how society has acted toward that individual in the past.
Once our legal system accepted the general premise that social conditions and upbringing could be excuses for harmful conduct, the range of causes that might prevent society from holding anyone accountable for his actions became potentially limitless.
Do we punish the drunk driver who has a family history of alcoholism? A bigoted employer reared in the segregationist environment, who was taught that blacks are inferior? The fraudulent and manipulative businessman who was raised in a poor family and who had never experienced the good life? The abusive father or husband who was the object of similar mistreatment as a child? A thief or drug pusher who was raised in a dysfunctional family and who received a poor education?
Which of these individuals, if any, should be excused for their conduct? Can we really distinguish among them in a principled way?
An effective criminal justice system – one that holds people accountable for harmful conduct – simply cannot be sustained under conditions where there are boundless excuses for violent behavior and no moral authority for the state to punish.
If people know that they are not going to be held accountable because of a myriad of excuses, how will our society be able to influence behavior and provide incentives to follow the law? How can we teach future generations right from wrong if the idea of criminal responsibility is riddled with exceptions and our governing institutions and courts lack the moral self-confidence?
Lenient Standards Cause New State of Dependency
A system that does not hold individuals accountable for their harmful acts treats them as less than full citizens. There may be a hard lesson here: In the face of injustice on the part of society, it is natural and easy to demand recompense or a dispensation from conventional norms. But all too often, doing so involves the individual’s accepting diminished responsibility for his future.
It also bears noting that contemporary efforts to rehabilitate criminals will never work in a system that often neglects to assign blame to individuals for their harmful acts. How can we encourage criminals not to return to crime if our justice system fosters the idea that it is the society that has perpetuated racism and poverty – not the individual who engaged in harmful conduct – that society is to blame for aggression and crime, and thus, in greatest need of rehabilitation and reform?
Let me close by observing that the transformation of the criminal justice system has had and will continue to have its greatest impact in our urban areas. It is there that modern excuses for criminal behavior abound – poverty, substandard education, faltering families, unemployment, a lack of respect for authority because of deep feelings of oppression.
I have no doubt that the rights revolution had a noble purpose: to stop society from treating blacks, the poor, and others – many of whom today occupy our urban areas – as if they were invisible, not worthy of attention. But the revolution missed a larger point by merely changing their status from invisible to victimized. Minorities and the poor are humans capable of dignity as well as shame, folly as well as success. We should be treated as such. 
