Saturday, November 15, 2014

The "Case" Against Reparations (And Not for the Reasons You Think)

Dr. Martha Stephens fought for "dignity" back in 1972
While doing legal research, I came across a case that I didn't really want to read, but because it related to the subject I was researching, I was forced to slog through it.  Being a lawyer is both an asset and a curse: I can pretty much decipher most legal documents; however, on a practical level, much of what I read doesn't make sense in application, and that premise explains the inherent bipolarity of our legal system:

1.  We believe in separation of Church and State, but fight for the 10 Commandments to be on state property.

2.  All men were created equal.

3.  We espouse the principle of "one man, one vote," but then try to prevent certain people from voting, and the Supreme Court, in Bush v. Gore, basically said, "nah.... you can stop counting...give it to Bush."

4. We call ourselves civilized, but kill people for killing other people, something most of the civilized world doesn't do.

5. We believe in equal rights for women, but not equal pay to that of their male equivalent.

6. We all pledge allegiance to the flag, but a Congressman in a hallowed building can shout that our President is a "liar." 

7. We allege to love our country, but want our President to fail.

8. We have a democratically elected President take office, and when it's time to symbolically unite at the White House, one political party is missing: the one that boasts how much it loved President Lincoln, who freed the slaves, but which hates his Black successor.

I have come to realize that our country is inherently schizophrenic, especially, for those who have benefited the most from America's bounty, like the legacy kids of Ivy League schools, who can go to the best schools in the country because their parents attended or were donors, then bemoan when Black kids get an opportunity to go (who have to work hard to graduate) without their parents' connections.


So....

Reparations, anyone?

I'm all for it. And if you want the seminal history of why the reparations debate is timely, read this.  Ta-Nehisi Coates certainly deserves a Pulitzer for his in-depth, exhaustive analysis of the economic experience of Black Americans in this country.  I cannot even bear to read all of it, honestly, as it hurts me to the core. I can read it only in doses.

I don't dare try to match literary wits with Mr. Coates, but rhetorically, I ask myself -- will reparations happen?

I doubt it.

Here's why:

In all of our greatness as a country, throughout all of the strides we have made, post-slavery, in all of our flag-waving and belief in so-called fundamental constitutional rights, there is one prize that many alleged "lesser" countries around the world espouse that we do not:  the right to human dignity.

Let's define the word dignity:

dignity |ˈdignitē|
noun ( pl. dignities )
the state or quality of being worthy of honor or respect:
  
Where the post-Nuremburg European powers have announced their respect for human dignity, no where is it enshrined in American law. The U.S. courts have said as much in the very small progeny of cases that succeeded the In re Cincinnati Radiation Litigation, a case decided in the United States District Court, S.D. Ohio, Western Division, in 1995.  Although the question of human dignity was not a part of the Cincinnati case, the implications of the case brought up the specter of Hitler's experimentation on Jews.

I won't dwell on the obvious horrors of the story - horror because this didn't happen during the "get- over it-that-was-so-long-ago (slavery) - but only forty years ago, during the heralded post Civil-Rights era. Basically, Black Americans were experimented on [like the 3/5s of a human being they once were believed to be] in a municipal hospital in Cincinnati, under the financial oversight of the Department of Defense. The experiments were done between 1960 and 1972, at the University of Cincinnati College of Medicine and Cincinnati General Hospital, on at least 87 people. The subjects of the experiments were exposed to total or partial body irradiation.  All this was done without the permission of the patients, a majority of whom were Black Americans, who believed that they were being treated for cancer. 

Let that sink in.  

The judge in the case couldn't contain her own disgust at the facts: "The allegations of the Complaint make out an outrageous tale of government perfidy in dealing with some of its most vulnerable citizens. The allegations are inflammatory and compelling." That being said, the law is the law, and the judge had to deal with the procedural and legalistic matters that superseded questions of "dignity" and "humanity," not to mention shock that a democratic government would even think to do this to its own "alleged" citizens.  

Despite that judicial admission of the factual horrors of the case, even the name of the actual lawsuit caption doesn't go far enough. The caption, itself, "In re Cincinnati Radiation Litigation," protects the defendants so as not to ascribe a "name" or identify the malfeasants.  Usually case captions name the parties, but in this case, as it was, in effect, a class action of numerous plaintiffs, and the defendant was the "government," and its employees, the individuals who performed the experiments are spared the embarrassment of being named. I'll do so here, however (excerpted verbatim from the judge's lengthy opinion):

The individual Defendants are denominated as follows: Eugene L. Saenger, M.D. was employed by the Department of Radiology of the University of Cincinnati College of Medicine and was the lead researcher conducting the Human Radiation Experiments at Cincinnati General Hospital. Dr. Saenger is alleged to have designed, supervised and conducted the experiments that are the subject of this Complaint.

Edward B. Silberstein, M.D.; Bernard S. Aron, M.D., Harry Horwitz, M.D., James G. Kereiakes, PhD, Harold Perry, M.D., Ben I. Friedman, M.D., Thomas L. Wright, M.D., I-Wen Chen, Ph.D., Robert L. Kunkel, M.D., Louis A. Gottschalk, M.D., Theodore H. Wold, PhD, and Goldine C. Gleser, Ph.D. also were employed by the University of Cincinnati and are alleged to have assisted Dr. Saenger in the Human Radiation Experiments.

Warren O. Kessler, M.D., and Myron I. Varon, M.D., were medical officers in the United States Navy and are alleged to have been the Project Officers charged with providing federal oversight of the Human Radiation Experiments. Because Drs. Kessler and Varon were federal officials, their conduct will be examined along with that of the other individual Defendants under the doctrine of qualified immunity and as regards Section 1985 and the Price-Anderson statute. However, the claims against Drs. Kessler and Varon will also be analyzed separately under the Bivens doctrine, which specifically permits claims against federal employees who violate constitutional law.6
The City, a municipality in Hamilton County, Ohio, is also a Defendant. The Complaint alleges that the City sanctioned, funded, and actively participated in the Human Radiation Experiments.

Finally, the University of Cincinnati ("University"), including its constituent College of Medicine and University Hospital (formerly Cincinnati General Hospital) is also named as a Defendant.
None of the individuals listed above were criminally prosecuted. Thanks to a thinking judge, Sandra Beckwith, a Republican appointee, at least the Defendants weren't allowed to escape from the tentacles of the legal system via the heralded concept of jurisdiction. They were under the clutches of the court, at a minimum, which was a Herculean feat, given the various arguments they raised to avoid the court's ability to decide the case. In a nutshell, this is what the defendants claimed in their defense:

1. You can't sue us for our atrocities, because... we're in another state.
2. Some of us were merely Project Officers, not real supervisors of the experiments.
3. We were government officials only doing our delegated jobs.
4. The radiation subjects weren't prisoners--they came to the hospital of their own volition and could have left the hospital whenever they wanted to (have you ever told your doctors during an examination to "go to hell?")


Notwithstanding that prosecutorial mistake in judgment for not putting them all in jail for at least the equivalent number of years that they committed these indignities against these human "guinea pigs," this discussion is less about the radiation litigation, and more about the settlement, and the implications for reparations.

When the case settled (because of course, who wants to sit in a witness chair in a public trial to defend the indefensible?), the Defendants, after alleging that they could bring a private cause of action against individual defendants, changed their minds about whether Plaintiffs could opt out. As most Americans know when they are advised of a class action against a corporation, individuals are allowed to "opt out," and bring their own personal cause of action, with a private attorney.  Most of us accept the $1.00 coupon awarded at the end of a class action settlement, and skip merrily along while the attorneys divide the millions of dollars in fees, the spoils of litigating and [almost always] settling.

In the Cincinnati case, the government, essentially alleging that it would exhaust its funds in settling the case, argued that all of the plaintiffs would have to accept the settlement.  There would be no opportunity for the plaintiffs to bring private causes of action against the defendants. Instead, they were to be pooled together, in a class action of faceless litigants, like the nameless slaves on a slave ship bound for the New World.  Only after Public Justice filed a "friend of the court" brief against disallowing opt-outs was this argument shelved.  The settlement awarded the 87 victims $50,000 each.  Sure, that's not small change, especially since the awards were made in 1998.  As I explained in an earlier blog, Black farmers got the same settlement amount from the government: $50,000. For 12 years of a terrible practice, of being experimented on as human beings - some of whom actually died during the experimental period--all they got was $50,000.


My people were separated from our heritage.
We were stripped of our native language and the familial and social bonds that go with it.
My people were beaten.
My ancestors were likely raped, and the women sired children born into slavery.
When my people were supposed to be freed, some of us weren't told about it.
When we were freed, we were not allowed to go to school in many instances, forced to work in menial jobs.
After we were freed, we were forced to sit in the backs of buses and take our lunch while traveling (to avoid being turned away in restaurants).
After we were freed, we were denied opportunities to flourish as full-fledged human beings with talent, except for a preponderance of entertainers who had to "chuck and jive," to be able to use their crafts.
After we were "freed," we were forced to fight for the freedom of other people while, we, ourselves, were not free.
Now we are sent to school, only to be ushered into prison for infractions for which Whites are rarely or barely punished.
And you want to give me $50,000?

Japanese-Americans were herded into concentration camps (without being declared subhuman; they were full-fledged citizens!) and received $20,000--50 years later. On the whole, the Japanese do not show any bitterness, openly, at least:  they don't call people racists, likely for fear of being sent back to those camps, because the Supreme Court case that said it was okay to treat them as second-class citizens, Korematsu v. U.S., is still good law.


The point is that, though made up of individuals, the government is an omnipotent monolith, a monster that can crush all of us and then argue against the individual actor's fault. Changing the mantra of finding the enemy and the enemy is us, instead, for legal purposes, we refuse to sue ourselves: "We are the government and the government is us," making individuals not responsible for their collective acts of heinous government policy.  I am an unlikely ally with the libertarians who eschew government intrusion in our lives, but I echo their sentiment, under a different theory: if the government overseas horrific medical practices that jeopardize the lives of individuals with the "perfidy"  that the government has shown over the centuries, what is the likelihood that we can ever  expect the government--made up of [some] truly horrible people who can exert their power over the most vulnerable--to do the right thing and redress their wrongs?

Germany did.

According to Ta-Nehisi Coates:

Germany ultimately agreed to pay Israel 3.45 billion deutsche marks, or more than $7 billion in today’s dollars. Individual reparations claims followed—for psychological trauma, for offense to Jewish honor, for halting law careers, for life insurance, for time spent in concentration camps. 
I do not wish to draw comparisons between the tragedy of the respective Jewish and Black diasporas. My point in bringing up Germany's reparations (the story of the signing ceremony is riveting reading in Mr. Coates's article), is to show how one "bad" government came to terms with its actions, while another, allegedly "good" government--did and does nothing.

If the past is prologue, it don't look too good, my brothers and sisters, and I'm not sure we Americans have what it takes to do what Germany did after WWII.  The Declaration of Helsinki and the Nuremberg Code declared that persons could bring a  private right of action for violation of international law for the protection of human research subjects, under principles invoking the right to human dignity.  The U.S. courts said, instead, "we don't need to 'steenking' international law concepts to do our job," finding that the legal standards for conducting research on human subjects contained in the United States Code of Federal Regulations should suffice.

There goes our chance at asserting our right to dignity, Black America.

The solution?

I'm not sure.

Will it take another Republican appointee to redress so grievous a wrong? Because the Democrats aren't likely to step up to the plate (their Dixie masks are still in their closets, and many have proven to be traitors to their own Black President). Generations from now, Americans will be too far removed from making this an issue, as even some of today's youth consider Rosa Parks' place in history too old to respect; and views of race have changed so much that hip-hop and interracial dating has turned everybody fashionably "light brown."  

What happens, in the meantime?

Our country, 'tis of thee.... the State of Ferguson
More of Ferguson, an inherent parodox explained by writer Bob Cesca's recent portrait of our schizophrenia -- the glimpse into what we truly fear.

Should Black America ask the United Nations or some other international body for support, like Mike Brown's parents?

America will continue to live in a quiet state of Ferguson, of perennial doubt and distrust, of guilt, rage, and hatred of self, that will spin Blacks and Whites out of control, while more perfidious forces (everyone should adopt "perfidy" as a new vocabulary word) take over our so-called democracy.  Race is sport in America. As long as the lines are drawn, we'll always have something to fight over, raise money over, and justify our respective positions as the powerful and the powerless.

Our Founding Fathers said that it's all about "life, liberty, and the pursuit of happiness."

Imagine how much different history might have been had they added the word, "dignity" to that political canon. And how tragic for Black America, that even as recent as 2008, the U.S. determined that "there is no universal agreement on the meaning of the term, human dignity."


































2 comments:

Donna Pistole said...

Just got around to reading this post (yet another excellent one, of course), and was amazed that I had never come across the Cincinnati case before. I used to cover the horrific Tuskegee "study" in a course I taught on ethics in psychology. I would certainly have included this one as well had I known about it.
How many more there must be that we will probably never even find out about....

VL Towler said...

Yep. It's frightening how much has happened that we don't know about. Honestly, I have kept my head buried in the sand, intentionally, but had to address it once I read the case. Thanks for reading!

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