Dr. Walker - Common Sense in the Workplace

The call for the exercise of common sense in the workplace

During my tenure as Commissioner of Juvenile Justice in Georgia, then Governor Zell Miller requested all department heads to read Philip K. Howard’s “The Death of Common Sense: How Law is Suffocating America” in order to help us become more productive and responsible as managers.

I found the book to be interesting and an accurate reflection of a number of the problems that inhibit agencies from providing a good public service.  Specifically, Howard documented how laws and rules dictate results that rarely make sense, and how the application of law appears devoid of thinking. 

Howard provides many examples of how rules replace thinking and processes replace responsibility.  He informs us that this type mindset is buttressed by the idea that, in a good legal system, decisions are predetermined and social choices pre-made.  This leads to results that frustrate and humiliate citizens while not accomplishing anything at all.

One of the best examples to illustrate this point involved two of the most famous leaders in New York City:  Mayor Ed Koch and Mother Theresa, the Nobel Prize Winner and the leader of the Nuns of the Missionaries of Charity Order.

It began in the winter of 1988.  Two nuns trudged through the snow-covered streets of The Bronx, in search of a suitable location to house the homeless.  They were in luck this day, as they located two-fire gutted buildings.  They thought this find was blessed by Providence, as one of the nuns found a charred Madonna among the rubble.  The Missionaries of Charity agreed to buy the two buildings from New York City for the heavenly sum of one dollar each, and they set aside $500,000 for reconstruction.

The plan was for the order to provide temporary care for 64 homeless men.  It should be noted that the Missionaries of Charity, in addition to their vow of poverty, must also avoid the routine use of modern conveniences:  street cars are eschewed by the order, all dishes and clothes were to be washed by hand, stairs are to be used instead of elevators, etc.

Even though the City owned the building, no one had the authority to transfer the ownership of the buildings to the nuns except through an extensive bureaucratic process.  For a year and a half, the nuns found themselves traveling from hearing room to hearing room explaining the details of their plan over and over again to various officials.  When their plan was finally approved in 1989, the Missionaries of Charity began repairing the fire damage.

After almost 2 years of renovations, the Death of Common Sense reared its ugly head and doomed the charitable project.  The nuns were informed that New York City building code required an elevator in every new or renovated multiple story building.  Of course, an elevator is a modern convenience, which because of their beliefs they could never use. It would also cost an additional $100,000.  The nuns were told the law could not be waived even if its installation made no sense.

Mother Theresa eventually gave up on the project because she felt the $100,000 could be more wisely used.  Clearly, the law and what it required offended common sense.

Howard’s book is chock full of examples like this that illustrate how the bureaucracies rely on how things are done as being far more important than what is to be accomplished.  Indeed, governments make the process an end in itself rather than the goal of fixing something.  According to Howard, “Just as rules have turned law against us, the exaltation of process has transformed the idea of fair consideration into ritual without consideration.  It has become the orthodoxy of government.”

Reliance on process affords bureaucracies the excuse to avoid making decisions, thereby accomplishing virtually nothing of what it sets out to do.  And this is based on the premise that the right decision will be ensured if we build enough procedural protection.

Howard admits, and I agree, that many procedures and processes exist for good causes, namely to ensure fairness and avoid playing favorites.  In fact, due process is guaranteed by the U.S. Constitution before the government can take away our liberty or our property.  Legal process is the hallowed protection against government coercion of a citizen.  In fact, everyone accused or indicted is entitled to the presumption of innocence until proven guilty in a court of law.

In spite of the sacredness of due process, a case can be made that modern law has not protected us from stupidity and caprice but has made stupidity and caprice dominate features in our society.  We need not look far for a modern example,  like the prosecution for the high school students in Jena, Louisiana; the prosecution of a 17 year old high school student in Douglas County, Georgia, Genarlow Wilson.  Even closer to home, consider mandatory sentencing and zero tolerance laws.  These are rife with unintended consequences.

So now, what can we do to change this and elevate common sense?  Mr. Howard suggests the following:

"Law should articulate goals, award subsidies, allocate presumptions and provide mechanisms for resolving disagreements, but law should not provide the final answers.  Life is too complex.  Our public goals are too complex.  When accomplishment or understanding is important, we have no choice:  Law can’t think, so law must be entrusted to humans and they must take the responsibility for their interpretation of it."

Eugene Walker - Jena

In a little town called Jena, Louisiana, the white kids and the black kids have co-existed in a voluntary segregation for as long as the school has been legally “integrated”. The white kids at the high school staked out a tree, the black kids hung out anywhere else.

Until the day came that one of the black kids sought shade under that very tree. The teen had the presence of mind to ask the principal first. To make sure there wouldn’t be in any trouble.

In literary circles, they call that “foreshadowing.”

The next day, nooses hung from the tree. Then all hell broke loose. The black kids picked fights with the white kids, and the white kids picked fights with the black kids. A lot of kids got hurt. This is where parents, administrators, and police would step in, and in Jena Louisiana, they did.

A school assembly was called, and Jena District Attorney Reed Walters appeared with local police and spoke to the black students. He allegedly warned the students against further trouble, stating that he could, “...make their lives disappear with the stroke of (his) pen…”

Shortly thereafter, there were more fights. A white student threatened the black ones with a shotgun, but the gun was wrestled out of his hands. Six black students were arrested, for, among other things, stealing a firearm. The white student that pulled the shotgun was not charged.

When I began writing for the Champion this year, I wrote an article about the uneven distribution of law enforcement and prosecution. The article was titled “Justice or Just Us” (April 13, 2007)

In that article, I was particularly angry about the incidents in Paris, Texas. You’ll recall, that’s the place where a fourteen year old white girl gets probation for burning down a house, and a fourteen year old black girl gets seven years in prison for a shoving match with a hall monitor at school.

While these locations seem rural and far away, I assure you that institutional or “stealth” racism and disproportionate justice is more often the rule than the exception.

When I was growing up, racism was a lot easier to identify. People would call me the n-word to my face. There was no question of who was racist, nor was there any shame at the time of being racist.

But times have changed. In many ways we have made progress on our path to equality, but as the above instances show, racism is alive and well flourishing in our bureaucracies and in our criminal justice systems.

Before you think I have made to great a leap in my logic, consider a few practical political consequences of this unjust system:

• Of the 2.1 million inmates today, 910,000 are African-American. Blacks make up 43.9 percent of the state and federal prison populations but only 12.3 percent of the U.S. population. Latinos constitute 12.6 percent of the country’ population, and yet they are 18.3 percent of the prison population. Whites account for 69 percent of the U.S. population and 34.7 percent of those incarcerated.
  
• One of every three black males born today can expect to go to prison in his lifetime.
  
• African-Americans constitute 13 percent of all monthly drug users, but they represent 35 percent of arrests for drug possession, 55 percent of convictions, and 74 percent of prison sentences.

As I have preached time and time again, in today’s society, any conviction is a lifelong conviction, in terms of voter disenfranchisement, and income loss through the absence of employment opportunities. I’ll leave these details for another column.

What the Jena, Louisiana, Paris, Texas and countless other communities like them serve to demonstrate how minorities get to the point of disproportionate incarcerations. Surely the punishments are handed out unevenly, but the problem begins on the front end. It’s when law enforcement officials like police officers and district attorneys make a juryless judgment call to prosecute some, but not others.

In his famous letter from the Birmingham Jail, Martin Luther King Jr., wrote “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly."

We’ve come a long way since Martin Luther King Jr. But as Jena, Louisiana illustrates, and Dr. King taught us, "when evil men plot, good men must plan. When evil men burn and bomb, good men must build and bind. When evil men shout ugly words of hatred, good men must commit themselves to the glories of love. Where evil men would seek to perpetuate and unjust status quo, good men must seek to bring into being a real order of justice."