Frank Gifford, The NFL Concussion Lawsuit, and Justice for Brain-Injured Players – posted 11/29/2015
With the passing of legendary football star Frank Gifford, chronic traumatic encephalopathy or CTE claimed its most famous victim. CTE is a progressive, neurodegenerative disease found in people who have experienced a history of repetitive brain trauma. It is marked by depression, anger, disorientation, memory loss and suicidal ideation. It is being increasingly recognized as the signature brain injury suffered by NFL players.
Gifford, the former New York Giants running back and Monday Night Football broadcaster, died in August. The Gifford family announced that Gifford had “experienced firsthand” symptoms associated with CTE. The family decided to have Gifford’s brain studied in the hopes of contributing to the advancement of medical research concerning the link between football and traumatic brain injury.
The Gifford family did not offer specifics but they said that they suspected he was suffering from the debilitating effects of head trauma. A team of pathologists confirmed the CTE diagnosis. At this point CTE can only be diagnosed after a person’s death.
Being from Philadelphia and being an Eagles fan, I watched on TV and saw the famous, vicious hit Eagles’ player Chuck Bednarik delivered on Gifford in November 1960 at Yankee Stadium. Gifford was knocked unconscious and he lay flat and absolutely still on the field. Sam Huff, a great Giants linebacker, has been quoted saying at first he thought Gifford was dead. The play became an iconic NFL image.
Gifford spent ten days in the hospital after the hit and he missed the entire following season. Gifford did return to football in 1962 and he played two more seasons. He played twelve years in the NFL altogether.
I would note that Bednarik, who also died this year, had a reputation as one of the toughest players to ever play the game. A Hall of Famer, Bednarik, nicknamed Concrete Charlie, was one of the few players to play both ways. He was a center on offense and a middle linebacker on defense and he often played the whole game. Interestingly, after he died the Eagles released a statement saying he died after a “brief illness” but Bednarik’s eldest daughter disputed that. She said he had Alzheimer’s disease and she said he had been suffering from dementia for years.
It is hard to know what the effect of one particularly vicious hit can be but Gifford took that one devastating hit as well as many others in his career and he was known for never wanting to be taken out of a game.
NFL Commissioner Roger Goodell predictably responded to Gifford’s death. Recognizing his many contributions, Goodell praised Gifford for his efforts to improve safety in the game and for helping the medical community understand more about CTE.
The thing that was left out by Goodell was the fact that the NFL, under his leadership, continues to fight to exclude CTE as a compensable injury in the lawsuit filed by former NFL players. While Goodell has been rightly criticized for many other decisions like Ray Rice and Deflategate, I think the NFL’s exclusion of CTE is his most pernicious mistake. It could end up hurting thousands of former players who have or will eventually obtain a CTE diagnosis.
The NFL players’ lawsuit is currently before the Third Circuit Court of Appeals. The federal court approved a settlement agreement between the NFL Player’s Association and the League but 90 players have appealed the agreement. Oral arguments were just held. Whatever the outcome at the Third Circuit, I think it is very likely the case will be appealed to the U.S. Supreme Court.
The problem with the NFL settlement agreement is that the great majority of retired football players experiencing physical, emotional, and behavioral impairments following a history of repetitive concussions would not be compensated. The agreement compensates certain discrete, small groups. Those with ALS, Alzheimer’s, and Parkinson’s will be well-compensated. Those who suffer some of the most disturbing symptoms, mood and behavioral disorders, will not be compensated.
Those players who suffer from CTE face a narrow window. If you die after April 22, 2015, the date of the concussion settlement in federal court, and you obtained a CTE diagnosis, you and your estate get zero. If you died before April 22, 2015, and you had a CTE diagnosis, you and your estate would obtain up to $4 million.
That result is neither fair nor equitable. No one alive now would ever receive future compensation for CTE under the agreement as it stands. The NFL is among the deepest of deep pockets and its litigation strategy is designed to save it maximum dollars at the expense of its brain-injured players.
A wild card in this settlement is the relatively primitive state of brain science around concussions. Much knowledge has been gained in the last 20 years, including an awareness of the existence of CTE, but the science is in its early stages. Scientists predict that within the next five to ten years, CTE will be able to be diagnosed in the living.
The settlement agreement does not include an adequate provision about scientific advances. It only requires the settling parties to “meet at least every ten years and confer in good faith about possible modifications”. The NFL would retain veto power over any prospective changes. You don’t have to be a cynic to know in what a weak position this provision would leave brain-injured, former players.
Earlier this year, a study done by researchers at Boston University and the Department of Veterans Affairs found that out of 91 former NFL players’ brains examined, CTE was found in 87. Dr. Ann McKee, the chief of neuropathology at the VA Boston Healthcare System stated that these latest numbers are “remarkably consistent” with past research.
It would appear that the NFL, which previously tried to manufacture doubt about the existence of CTE, is now ignoring clear findings at least as far as litigation is concerned. The almighty dollar rules. In the tension between making money and player safety, the balance tips toward money even where the cost of safety is a relative pittance compared to the wealth of the league.
I suppose in fairness I should acknowledge some positive steps the NFL has taken regarding player safety. It has adopted important concussion protocols. If it is suspected that a player has suffered a concussion, the player is supposed to be removed from the field for a medical evaluation. Prior to a return to play, the player must have returned to baseline status, including cognitive and balance functions. He also must be cleared by the team physician and an independent neurological consultant.
As the recent situation with Rams quarterback Case Keenum showed, there can be problems with the implementation of the protocol. In a game against the Ravens, Keenum stayed in the game for several plays after he was concussed. Keenum had taken a sack and he appeared woozy after he was slammed into the ground. At first he could not get up. The Rams have failed to provide a good explanation for why he was not pulled from the game.
That situation is hardly different from many others. Possibly readers remember the hit Julian Edelman took in the Super Bowl last year. Kam Chancellor of the Seahawks smashed Edelman in what appeared to be an illegal helmet-to-helmet hit as he was going over the middle. Edelman continued to play. After popping up after the catch, he ran about ten yards and stumbled down, appearing dazed as he tried to regain equilibrium. Although Edelman showed signs listed by the concussion protocol, the Patriots and concussion observers let him stay in the game. When asked about it after the game, Edelman responded, “We’re not allowed to talk about injuries.”
I think there are at least two real factors which work against the concussion protocol. Teams want to keep key players on the field as long as possible to enhance the chance to win. I think that was going on with Edelman in the Super Bowl. Players are also reluctant to acknowledge their concussions. Players desperately desire playing time. They may feel that toughing it out during times when they have headaches or concussion-like symptoms is a necessity as their careers hang in the balance. For so many players, football may be their best ticket out of a life of relatively low wages and obscurity and I expect they feel the risk is worth it.
Last week Reggie Bush, the Lions running back, likened NFL games to being in a car crash. That is not a bad analogy as in both situations the brain sustains a blow where it is moving rapidly inside the skull. In that context, Bush was lamenting Thursday night games because players who have to play in those games do not have enough time to recover from the previous Sunday game. It is well known that players and coaches generally hate Thursday night games because of the lack of recovery time but the TV ratings and money have led the NFL to expand those games. This is another one of those bad, profitable decisions the League makes dictated by the bottom line.
On Christmas Day, the new Will Smith movie, Concussion, will open around the country. The movie is about a forensic pathologist’s efforts to publicize CTE. It dramatizes how the NFL suppressed research on the brain damage suffered by pro football players. It could not be more timely. So many people play football at all levels in the United States that we, as a society, do need to think about the public health implications of so much possible brain injury.
In our era, an almost ghoulish love of money remains a dominating value. Billionaires want more billions and never can get enough. NFL teams share that obsession but they should not do it in a way that treats players like they are simply a disposable commodity. Justice for the brain-injured players is a matter of fundamental fairness.
As the various presidential candidates make their case for why each would make the best president, I have been struck by how little they have had to say about American foreign policy. This is partly understandable because domestic policy is a primary concern for voters. They want to know what the candidates will do about jobs, the economy, the environment, education and health care.
Still, I find the absence of any original discussion on foreign policy a potentially worrisome sign. Mention of the word “terrorism” provokes knee-jerk, bellicose reaction. Instead of critical analysis, there is macho posturing. Attacks like those that just happened in Paris lead to anger – not thought.
Candidates simply try to look tough. The image they want to project is that, if given the opportunity, they will face down and take down any perceived opponent of American interests, anywhere. American interests are defined to include the whole world.
Looking broadly at the last 50 years of American foreign policy, I think there is a pattern of non-recognition of mistakes made leading to repetition of the same or similar mistakes. I am reminded of the famous Albert Einstein quote: “Insanity: doing the same thing over and over again and expecting different results.”
Wars, as in Iraq and Vietnam, were fought for bad or stupid reasons. Justifications offered were pitiful. At the same time, money gets heaped on the Pentagon and the military-industrial complex hugely expands, including a massive growth of private contractors. Out of these wars, thousands of American lives were ended or ruined. Soldiers return home damaged, disturbed, and traumatized.
There is no accounting for the damage done and no assessment of whether the wars were worth it. We blunder forward into the next war and the next. In her excellent book, They Were Soldiers, Ann Jones looks at the catastrophic damage done to our soldiers by the wars in Iraq and Afghanistan. Politicians who want to put boots on the ground in Iraq or Syria now are glossing over the heavy cost already paid. They are too cavalier about the lives of other peoples’ children.
It is hard not to think that all the talk about honoring our veterans is lip service. After the experience of the last 14 years, the idea of sending more to die in Iraq or Syria is a pointless waste. It was delusional and arrogant to think we were going to turn the Middle East around. So many veterans have returned and are still returning with troubles that will last a lifetime. Their care here and their future prospects are often highly problematic and that is a nice way to put it. So many veterans fall between the cracks of the system and they are simply forgotten.
I don’t think either the war in Iraq or the war in Vietnam were worth it. Both wars were sold on the basis of lies. In the case of Iraq it was lies about the weapons of mass destruction. In Vietnam, it was the phony domino theory. However with the exception of Bernie Sanders, I don’t see candidates in either party drawing these conclusions. Both parties remain wedded to the war machine and have an inadequate critique of our excessive militarism.
The history I have mentioned suggests America needs a more modest foreign policy and an appreciation of limits. It also suggests that diplomacy has been underutilized. One thing that was striking about President Obama’s deal with Iran was how long it has been since we have seen a positive example of diplomacy. War has been a first resort, not a last resort, and the consequences have harmed America.
I would suggest that there are other ways to fight violent jihadi extremists than sending troops to the Middle East. The brutal terrorist acts of the Islamic State and Al Qaeda need to be interdicted and prevented. They need to be ideologically undermined and they need to be pursued criminally. We do need to look closely and better understand why so many young people feel an affinity for such a despicable organization as the Islamic State. We need to win the war of ideas so that young people see the Islamic State for what it is: anti-human, murderous, totalitarian, and anti-modern. Since the Islamic State is an international entity, we need to cooperate with allies to figure the best ways to stop them. The project of preventing sponsors of radical jihadism from extending their influence should bring many nations together.
We should have learned by now that we cannot be the world’s policeman although we act like we are. Having the over 800 military bases we have around the world can lead to a wrong-headed over-reliance on military options. Realistically, America does not have the money or troops for interventions everywhere. Also we need to acknowledge that more often than not over the last 50 years, our interventions have done far more harm than good.
I would mention two historians, Andrew Bacevich and the late Chalmers Johnson, who argued the points I am making. Both have argued for a narrower conception of American interest. Rather than a strategy of open-ended global war where we could be fighting in almost any country, Bacevich and Johnson argued against that type of grandiosity. Bacevich particularly cites the George W. Bush presidency. Bush set out to transform the Islamic world. From the perspective of over a decade later, we can see what a costly misjudgment that war turned out to be.
Part of the pattern is that we destroy and then we destabilize. We take down dictators but then there is no plan for what comes next. Witness Iraq and Libya. Into the vacuum steps the Islamic State. We are the unwitting architects of the Islamic State. It must be emphasized that without our intervention, there would have been no Islamic State.
Even worse, we are also the unwitting provider of arms for the Islamic State. When the Iraqi Army has fled from battles, as it seems to do frequently, it has left behind huge caches of weapons and vehicles which were then expropriated. An example is when the Iraqi Army abandoned its second largest city, Mosul, in June 2014, ISIS acquired 2300 American-made humvees that were left behind. We should not be arming our opponents.
Critics who question these failed policies are tagged as isolationists and they are dismissed. I would suggest that the purveyors of the conventional wisdom which led us to the Iraq quagmire are the ones who should be dismissed. Their track record should be obvious to all.
There are so many questions that need to be asked that are not getting asked. Here are five:
- How do we maintain an alive and vital Fourth Amendment protection against search and seizure in an era of demonstrated mass surveillance overreach?
- Are drone assassinations authorized by the president legal?
- Should we have a secret court, the Foreign Intelligence Surveillance Court, known as the FISA court, making secret law based on secret proceedings with no adversarial process, when we know that court sides with the government 99% of the time?
- Is the practice of torture, black sites, and rendition consistent with American values?
- How much does the rapid growth of the military-industrial-surveillance complex since 9/11, which is invested in war as a profit-making business, drive our foreign policy?
I also think the candidates should be seriously addressing climate change and abolition of nuclear weapons. It is pretty late in the day to be bringing this up, especially with climate change. Precious little has been said about either in the Republican and Democratic debates.
Bacevich writes that there is a long-standing American foreign policy tradition that harkens back to George Washington and John Quincy Adams. In his farewell address Washington warned against foreign entanglements. Adams said, ‘The United States does not go abroad, in search of monsters to destroy”. Bacevich says:
“The proper aim of American statecraft… is not to redeem humankind or to prescribe some specific world order, nor to police the planet by force of arms. Its purpose is to permit Americans to avail themselves of the right to self-determination as they seek to create at home a “more perfect union”.”
We have been led astray by presidents who saw their mission as combating evil and remaking the world. I would suggest that defending the United States and its vital interests should be our goal. We need a less grandiose and more clear-headed assessment of what those vital interests are. In the presidential campaign, I have not heard that debate.
If asked where genocide occurred in the 20th century, I expect most politically informed people would answer Europe under the Nazis, Cambodia with the Khmer Rouge, and possibly Rwanda. Some might mention the Armenian genocide or the mass murders in the Soviet Union under Stalin. I doubt people would think of the genocide in Indonesia. It is the hidden genocide.
This year marks the 50th anniversary of the Indonesian genocide. It is estimated that 500,000 to one million people died in Indonesia in 1965-1966 but the story has been buried, especially in the United States. How is it possible that a genocide could be hidden or erased from consciousness at this late date?
I think the main reason is that what happened in Indonesia in 1965 was perceived as great news and a political victory in the United States. The defeat of communists submerged the fact of their mass murder. It was the time of the Cold War and the American media did not look too closely. Genocide against a hated political movement was not seen the same as genocide against an ethnic, religious, or racial group. The murders were minimized and the victims were dehumanized.
The United Nations defines genocide as extermination of people on a large scale because of ethnic, religious, or racial reasons. It also considers the extermination of an entire political group or political movement genocide.
The 1965 story needs to be told. In the aftermath of an uprising called the September 30 Movement, General Suharto, a powerful figure in the Indonesian military, and his allies in the Indonesian Army seized control of the country. A bloodbath ensued. The Indonesian military, youth paramilitaries, and gangster-led death squads butchered massive numbers of people they perceived as opposed to a military dictatorship. The primary target group was the Indonesian Communist Party and its front organizations. However, anyone who could be accused of being an opponent of the military was swept up. That included union members, landless farmers, intellectuals, leftist artists, teachers, women activists, and the ethnic Chinese.
For those who may not know, Indonesia is a huge country. It is an archipelago in southeast Asia, comprising over 17,500 islands. It is the fourth biggest country in the world by population with over 255 million people. Up until the time of the genocide, Indonesia was led by President Sukarno, a charismatic leader who had balanced political rivals on the right and left. Sukarno was Indonesia’s first President. He had led the fight against Dutch colonialism and he was a leader of the non-aligned movement in the Third World.
Sukarno had allied with the Indonesian Communist Party which was a powerful force in the impoverished country. The Indonesian Communist Party was the largest communist party in the world outside the communist bloc countries. It had an estimated 3 million members with as many as 17 million supporters if you count front organizations. The Indonesian communists had gained popularity by leading the fight for land reform and by fighting for better conditions for the working class. At the same time, the Indonesian Army was strongly anti-communist with close ties to the United States.
Facts about the September 30 movement events that preceded the genocide remain disputed. Six of Indonesia’s most senior army generals were kidnapped and killed by a group of junior officers. While it is not clear who was behind the September 30 movement, it is clear that General Suharto used that movement as a pretext to exterminate all his perceived enemies. He then stayed in power as dictatorial leader for over 30 more years.
The genocidal killings were not of the Nazi depersonalized industrial style. There were no gas chambers. Suspects were beaten, tortured, shot, dismembered alive, garroted and beheaded in an up close and personal fashion. In his 2013 documentary, the Act of Killing, the director Joshua Oppenheimer interviews former death squad killers about how they killed. It is a hard but fascinating movie to watch. The killers remain proud of their mass murders. Hatred of the communists was whipped up on the basis that they were evil atheists, amoral and hypersexual. In the documentary, the killers described how the murder methods they saw in gangster movies inspired how they killed.
Many of the murdered victims were taken to rivers and and their bodies were dumped, left to drift out to sea. So many bodies were tossed into rivers that Indonesians stopped eating fish out of fear that the fish were consuming human flesh. Family members were never told what happened to their relatives. This was similar to what happened in Latin America back in the 1970’s when right wing militaries disappeared their opponents.
There are thousands of unopened mass graves scattered across the Indonesian archipelago. Along with the killing, hundreds of thousands were detained in prison for many years with no trial. The property and possessions of those killed were often confiscated by the killers.
In 1966, Bertrand Russell wrote “in four months, five times as many people died in Indonesia as in Vietnam in 12 years.”
A little known aspect of the genocide is the role of the United States. Much still remains unknown. Human Rights Watch has pushed unsuccessfully for years to have related U.S. government documents declassified. The reporter Kathy Kadane has documented that the United States played a significant role in the genocide by supplying the names of thousands of leftist activists, both communist and non-communist, to the Indonesian army. The lists of Indonesian Communist party leaders included over 5000 names from top echelons to village cadre. If true, this alone makes our government defacto accomplice to a mass murder.
In Kadane’s articles which appeared in major newspapers like the Boston Globe and the Washington Post in 1990, she quoted Robert J. Martens, a former member of the U.S. Embassy’s political section who was then a consultant to the State Department. Martens said,
“It really was a big help to the army. They probably killed a lot of people, and I probably have a lot of blood on my hands, but that’s not all bad. There’s a time when you have to strike hard at a decisive moment.”
According to Kadane, prior to the genocide, Martens had headed an embassy group of State Department and CIA officers that spent two years compiling the death lists that were delivered to the Indonesian army.
The United States also provided key logistical support to the Indonesian military to assist the slaughter, including jeeps and state-of-the-art radios which allowed U.S. operatives to listen in on what the Indonesian military was doing. The special radio system allowed for coordinated killing so the leadership in Jakarta could know what was happening on the islands. The radios filled a gap in army communications.
What is unique about the Indonesian genocide is that there has never been any public reckoning. Honest accounting of this history is still taboo in Indonesia. Many of the perpetrators are still in positions of power and under Indonesia law, they are immune from prosecution. Indonesia’s President, Joko Widodo, the first leader after General Suharto to have no ties to military or political elites, has refused to issue an apology to the survivors and victims’ families.
In Oppenheimer’s documentary, one of the death squad leaders says it is the victors who decide what is a war crime. That appears to be the case in Indonesia. The perpetrators are still proud of the mass murders. To date there is no Truth and Reconciliation Commission doing an investigation into what happened in 1965-1966.
The picture Oppenheimer presents of Indonesia is scary. Gangsters and paramilitary thugs operate freely, shaking down legitimate business people, shop owners and others. Corruption and graft appear to be a way of life. The population remains cowed, existing in a state of fear and silence. Those who had been associated with any type of progressive politics remain severely stigmatized. Oppenheimer describes a veritable shadow state where gangsters, paramilitaries, and the army are all beyond the law.
I would mention that Oppenheimer made an important companion documentary, The Look of Silence, released this year, that focuses more on the victims of the genocide. For those who want to learn more about these events, Oppenheimer’s documentaries are a good place to begin. Oppenheimer is no longer welcome in Indonesia.
There are current efforts toward accountability. Last December, Senator Tom Udall, Democrat of New Mexico, introduced a “Sense of the Senate Resolution” condemning the 1965-1966 atrocities in Indonesia and calling for declassification of U.S. government files about the mass killings. The resolution also encourages the Indonesian government to acknowledge the massacres and to establish a truth commission.
On November 10-13, the International People’s Tribunal on 1965 Crimes against Humanity in Indonesia will meet at the Hague. This tribunal of experts in human rights law and Asian history was established to examine the mass killings and other crimes against humanity in Indonesia. The Tribunal is an initiative of the International People’s Tribunal 1965 Foundation which was set up in 2013 by a group of victims in exile and in Indonesia, as well as human rights activists, intellectuals, artists, journalists and academics. The Tribunal follows in the tradition of the Russell Tribunal which investigated war crimes in Vietnam.
The Tribunal has charged Indonesia with the commission of crimes against humanity and with violations of international law. The prosecution case is based on extensive inquiry carried out by a large group of researchers. Material brought forward will include documentary evidence, witness testimonies, victim impact statements, and audio and visual materials. Among the crimes alleged are murder, enslavement, torture, sexual violence, unjust imprisonment, enforced disappearance and persecution though propaganda.
The judges of the Tribunal will examine the evidence presented by the prosecution, develop an accurate historical record and apply principles of international customary law. public international law and Indonesian law to the facts found. They plan to read their verdict in Geneva next year.
The Tribunal is not a criminal court. It has no power of enforcement but it hopes to shatter and puncture the culture of impunity around these events.
The website of the Tribunal is http://www.1965tribunal.org. Since this Tribunal has received virtually no publicity in the United States, I would encourage readers to read the indictment, which is readily accessible on the website. While much of the focus is on Indonesia, the Unites States, the United Kingdom , and Australia are also charged with knowingly aiding and assisting the State of Indonesia with commission of crimes against humanity and serious breaches of international law.
The historian Gabriel Kolko accurately summarized these events. He wrote:
“The “final solution” to the Communist problem in Indonesia was certainly one of the most barbaric acts of inhumanity in a century that has seen a great deal of it; it surely ranks as a war crime of the same type as those the Nazis perpetrated. No single American action in the period after 1945 was as bloodthirsty as its role in Indonesia, for it tried to initiate the massacre, and it did everything in its power to encourage Suharto, including equipping his killers, to see the physical liquidation of the Indonesian Communist Party was carried through to its culmination. Not a single one of its officials in Washington or Jakarta questioned the policy on either ethical or political grounds…”
History is about what we remember from the past. Some events survive in memory and some are gone into a black hole. I do think how we disappeared a genocide in which our nation is implicated deserves further consideration.
I wanted to acknowledge this date, remember Lise, and offer a poem. Lise loved the poetry of Muriel Rukeyser. One cherished memory I have is going with Lise to watch Muriel Rukeyser read her poems. I particularly remember her reading Ballad of Orange and Grape. I think Lise would have liked this poem.
Poem by Muriel Rukeyser
I lived in the first century of world wars.
Most mornings I would be more or less insane,
The newspapers would arrive with their careless stories,
The news would pour out of various devices
Interrupted by attempts to sell products to the unseen.
I would call my friends on other devices;
They would be more or less mad for similar reasons.
Slowly I would get to pen and paper,
Make my poems for others unseen and unborn.
In the day I would be reminded of those men and women
Brave, setting up signals across vast distances,
Considering a nameless way of living, of almost unimagined
As the lights darkened, as the lights of night brightened,
We would try to imagine them, try to find each other.
To construct peace, to make love, to reconcile
Waking with sleeping, ourselves with each other,
Ourselves with ourselves. We would try by any means
To reach the limits of ourselves, to reach beyond ourselves, To let go the means, to wake.
I lived in the first century of these wars.
Former Congressman Don Edwards of California passed away on October 1. The event did not get much public attention although it should have. Don Edwards was a principled and effective advocate for social justice, equal rights, and environmental protection. That is so rare in a Congressman, especially now. In our era, the most forceful congressmen don’t even believe in government. They want to shut down the government for stupid reasons.
You almost never attach the term “heroic” to a Congressman but for Don Edwards it fit. He served in Congress from 1963 to 1995. During that time, he was a fierce protector of civil rights and liberties. He also played a key role in shepherding every major civil rights bill that passed through Congress.
Even more interesting than his political accomplishments was his personal and political evolution. He switched parties in the 60’s. He went from being a Republican to becoming a progressive Democrat. In his earlier political life, he had been, admittedly, a liberal Republican, a breed that is now as extinct as the dodo bird. I think it is interesting when a political person evolves. From my experience, that type of change is unusual. It seems to me that many more people stick to the politics of their birth family.
Born in San Jose into a Republican family, he went to Stanford University and then Stanford Law School. He was a top golfer. In 1934, he reached the finals of the California State Amateur Championship. Many years later, in 1950, he teamed up with professional golfer Marty Furgol to win the Pro-Am title at the Bing Crosby National Pro-Am held at Pebble Beach.
After law school, Edwards spent two years as a special agent with the FBI. During World War II, he served as an officer in the Navy, working in naval intelligence. He then followed his grandfather and father into the family land title business.
In the 1950’s, Edwards joined the California Young Republicans and he was elected president of that organization. By the time he was first elected to the House in 1962, he had changed parties and become a Democrat. Even then, he was disillusioned with how conservative the Republican Party had become.
Early in his legislative career, he played a critical role in convincing Congress to pass the Civil Rights Act of 1964 and the Voting Rights Act of 1965. When he retired from Congress in 1995 he remarked about that time:
“It’s hard for some of you to remember…When I arrived [in Congress], black people couldn’t vote in large parts of the country, and if they did, they’d get hanged.”
About that time, Edwards also said:
“When I came here, the 11 states of the Old South practiced apartheid. There was a House Un-American Activities Committee. And the FBI was out of control threatening individual liberties.”
Edwards visited Mississippi and Alabama in 1964 where his son Leonard was working to register African-American voters. That experience had a significant effect on him. Edwards wrote Dr. King a letter in 1965 saying that his trip to Selma, Alabama showed him “the absolute necessity for immediate passage ” of the Civil Rights Act. He told King “we stand ready to support your efforts here in Washington”.
Edwards became chairman of the House Judiciary Committee’s subcommittee on Civil and Constitutional Rights. From that powerful position, he was the floor manager for many bills affecting minority rights and women’s rights. He successfully fought to extend the Voting Rights Act in 1982. At that time the Reagan Administration wanted to end the process by which states with past histories of discrimination had to have new election law “pre-cleared” by the Justice Department before they became effective. This is the same law the U.S. Supreme Court struck down in 2013 in the case of Shelby County v. Holder.
At the time, back in 1982, Edwards was quoted, saying:
“If you can’t vote, you are not a real citizen.”
Later in the 1980’s, he was arrested while protesting South African apartheid. The struggle against racism always remained close to Edwards’ heart.
Edwards had turned against the war in Vietnam and he had been the first House member to back Senator Eugene J. McCarthy’s anti-war campaign for President. That stand was controversial. It resulted in his only close re-election battle of his sixteen terms in Congress but he still won.
There are many fights in which Don Edwards engaged that deserve mention.
- he pushed the Equal Rights Amendment through the House in 1972 only to see it fall three states short of approval
- he was an effective member of the Judiciary Committee during the Watergate-era and he voted in favor of all articles of impeachment against Richard Nixon
- he played a key role in eliminating the House Un-American Activities Committee in 1975
- in 1986, he prominently opposed the nomination of William Rehnquist to become Chief Justice of the U.S. Supreme Court, citing Rehnquist’s past dismal record on the fight against racism. To quote Edwards about Rehnquist: “He is a relic of a shameful era in our history when the law was perverted into an instrument for segregating society. He should not be confirmed to our highest judicial office.”
- he played a big role in passing the Americans with Disabilities Act of 1990 as well as the Fair Housing Amendments Act
- he helped push through the Civil Rights Act of 1991 which expanded legal recourse for job discrimination
Edwards was an ardent environmentalist. He authored the bill that established the San Francisco Bay National Wildlife Refuge. That was the first urban national wildlife refuge in the United States. The bill preserved a wide swath of South Bay wetlands for fish, wildlife and public recreation. The refuge covered 30,000 acres and it provides a resting spot for migratory birds. There are also other wildlife preserves on the Central Coast of California that bear Edwards’ name.
Representative Zoe Lofgren, a former Edwards’ staffer and his successor in Congress, tells a story that captures Edwards’ reputation for standing up for the underdog. Congress used to routinely fire all the mostly African-American food service workers on Capitol Hill as a budget fix. The workers would appeal to Edwards for help even though he was not on the congressional committee that handled that issue. The workers knew who their friend would be.
While he remained a savvy legislator, Edwards was very respected by all for his gentlemanliness and his civility. He had strong relationships with legislators from both parties. When he retired, the late Republican Congressman Henry Hyde had this to say:
“He is relentlessly liberal but that’s not a vice. The battle for the fullest expression of civil liberties is losing a general, not a foot soldier.”
Even though Edwards had been an FBI agent, he had a contentious relationship with the former FBI Director J. Edgar Hoover. As one of his first acts in Congress, he had forced through an audit of the FBI that challenged the agency’s bookkeeping. That had not endeared him to Hoover. The Washington Post reported a funny story about the Hoover-Edwards relationship. After several years in Congress, Edwards publicly considered stepping down and not running again. That caught Hoover’s attention and he wrote a memo about Edwards’ impending departure from Congress. On the memo was a handwritten comment: “Good riddance.” it was signed with the FBI Director’s initial “H”. Somehow that document made its way to Edwards. Edwards kept a framed copy of that Hoover document in his office.
When Edwards retired at age 80, he was quoted on what he wanted at that point.
“We haven’t been able to have a dog for the last 25 years.”
Don Edwards was an American original. He served California and the nation with integrity and distinction. He set a very high standard as a legislator.
Criminalizing Poverty in New Hampshire – posted 10/4/2015 and published in the Concord Monitor on 10/7/2015
This piece appeared in the Concord Monitor on October 7, 2015 under the title “The Crime of Poverty”.
In a new investigative report, the American Civil Liberties Union (ACLU) of New Hampshire found that Circuit Court judges in our state are jailing debtors who have no ability to pay fines or fees they owe. Instead of inquiring into whether they are “willfully” failing to pay, judges are locking poor people away.
The practice is reminiscent of debtor’s prison, an institution with deep historical roots in America and England. Back in the 19th century, jailing debtors who were unable to pay a court-ordered judgment was a common legal practice. Debtors typically worked off their debt or they had to find some outside source of funds to pay off the amount owed in order to get out of jail.
Charles Dickens went through the experience of having his father and the rest of his family incarcerated in Marshalsea Debtor’s Prison when he was 12 years old. Dickens had to leave school to work in a factory to help support his family. His father’s time in the debtor’s prison was traumatic for the whole family and it had a shattering psychological impact on the young boy. Of that time, Dickens later wrote:
“… My whole nature was so penetrated with grief and humiliation…that even now, famous and caressed and happy, I often forget in my dreams that I have a dear wife and children; even that I am a man; and wander desolately back to that time of my life.”
In his work Dickens repeatedly wrote about debtor’s prison, most notably in his novel, Little Dorrit. The long shadow that family experience cast for Dickens is instructive about the human cost that is being inflicted on debtors right now.
The ACLU-NH found the practice of jailing debtors who had an inability to pay is systemic and not caused by rogue judges. In their report, they found nine judges in ten different circuit courts throughout the state jailing debtors who had no ability to pay their fines.
As pointed out by the ACLU-NH, debtor’s prison is supposed to be illegal. That law is well-established by both U.S. Supreme Court precedent and by state statute and rules. The law states that before an individual can be incarcerated for failure to pay a fine or fee, the court must meaningfully inquire into the reasons for failure to pay and it must determine that the individual is “willfully” refusing to pay despite having sufficient resources. The law prohibits courts from jailing individuals who simply cannot afford to pay.
The ACLU-NH also notes that both the federal and state constitution require representation by counsel if the judge is considering jailing for failure to pay a fine or fee in a criminal case. The ACLU-NH found that judges in New Hampshire were not conducting a meaningful ability-to-pay hearing. The word they use to describe current process was interesting – hyper-expedient. Neither were judges appointing counsel for poor people they were sending to jail.
The ACLU-NH report included several representative personal stories. In one case, Alejandra Corro, a 22-year-old single mother of two very young children, stole assorted infant clothing from Sears. She took the clothing for her children. Ms. Corro pled guilty and the court fined her $1000 with $500 suspended. The court added a $120 penalty assessment so the total owed was $620. The court authorized Ms. Corro to pay off the balance through 62 hours of community service.
Some time after that, Ms. Corro’s apartment burned. She had to move in with her mother. When she returned to court, she had only completed 20 of the required 62 hours but she stated the intention to complete the rest. Her previously appointed public defender tried to assist Ms. Corro but the court denied her request for an ability-to-pay hearing as well as her request for counsel. The court ruled that if Ms. Corro could not pay the remaining $420 she owed that day, she would be sent to Valley Street Jail in Manchester for nine days.
With the help of her public defender and the ACLU-NH, who filed an emergency petition, Ms. Corro only served one night in jail.
Another story in the report highlighted a homeless man named Dennis Suprenant who had been charged with misdemeanor conduct after a vehicle accident. Because Suprenant was indigent, he obtained a public defender to represent him on the charge. While his case was pending, the state’s Office of Cost Containment sent Suprenant notices about his non-payment of public defender attorney’s fees. Unlike some states, New Hampshire bills poor people for public defender services.
At a review hearing in February 2014, the court ordered Suprenant to pay $302.50 in its entirety by the end of the day or he had to go to jail. Suprenant’s public defender informed the court that the judge’s order would cause Suprenant to lose a job he had obtained two weeks earlier. Suprenant had, in fact, been making some positive strides in his life. He had entered drug treatment, graduated from a drug rehabilitation program, obtained his GED and started the job. The public defender argued jail would set back Suprenant to where he was before.
The judge responded by amending his order. He required Suprenant to pay all the money in his possession — $90. He then ordered that the remaining balance – $212 – be paid in less than two days. The court ordered that if the remaining $212 was not paid in two days, Suprenant was going to jail at Valley Street where he would be held until the amount was paid in full. How someone who was indigent would come up with that money while he was in jail remains a mystery.
The Public Defender and the ACLU-NH filed an emergency petition that resulted in the judge’s order being stayed.
I do not think these stories are unusual. Other than the fact that Ms. Corro and Mr. Suprenant ultimately got counsel, their stories reflect a strong national trend. All over the country, poor people are being jailed for failure to pay an increasing array of fees and fines associated with minor offenses and their rights are routinely ignored. These collateral costs follow offenders around and make it much harder for them to turn their lives around. Advocates have been calling it the criminalization of poverty.
National Public Radio (NPR) has reported that since 2010, forty-eight states have increased criminal and civil court fees. Offenders are now being charged for a long list of government services that were once free, including ones that are constitutionally required.
NPR found at least forty-one states charge inmates room and board for prison stays. Forty-four states bill offenders for their own probation and parole supervision. In forty-nine states there is a fee for electronic bracelets monitoring offenders when they are out of jail. At least forty-three states now bill defendants for public defenders. Inmates everywhere in the U.S. are charged unreasonably high fees for telephone calls from jail. As NPR reported, these fees often add up to hundreds and sometimes thousands of dollars. NPR estimated that between 80 to 85% of inmates now leave prison owing debt for court-imposed costs, restitution, fines and fees.
While state officials commendably responded to the ACLU-NH report and expressed a commitment to ending debtor’s prison, they do not appear to be seeing the big picture. We need to consider whether it is fair and just to shift the costs of running the criminal justice system onto the backs of some very poor people. All the fees and fines imposed on them make their lives and their reentry into society much harder. The New Hampshire Legislature should adequately fund the court system so that impoverished people who have committed a crime but who want to change and improve their lives are not unjustly burdened with debt they cannot pay.
Also, it makes no economic sense to jail people who cannot afford to pay fees or fines. The cost to the state for court proceedings and for housing people in jails far exceed the amount that defendants are charged as the ACLU-NH report argued.
The deeper moral issue here is the way our society treats our poor and vulnerable people. Where is our Charles Dickens to tell their stories and to speak for them in this time and place?