Lovely Hula Hands: Corporate Tourism and the Prostitution of Hawaiian Culture
I highly recommend this intriguing paper written from the perspective of a Hawaiian intellectual native on tourism in Hawaii, and the colonial imposition of Americans that have perilous effects on the preservation of purity of their indigenous culture. It may change your mindset thinking of Hawaii narrowly as an ideal and blissful fantasy destination.
“If you are thinking of visiting my homeland, please don’t. We don’t want or need any more tourists, and we certainly don’t like them.”- Author, Haunani-kay Trask
I am certain that most, if not all, Americans have heard of Hawai’i and have wished, at some time in their lives, to visit my Native land. But I doubt that the history of how Hawai’i came to be territorially incorporated, and economically, politically, and culturally subordinated to the United States is known to most Americans. Nor is it common knowledge that Hawaiians have been struggling for over twenty years to achieve a land base and some form of political sovereignty on the same level as American Indians.
Finally, I would imagine that most Americans could not place Hawai’i or any other Pacific island on a map of the Pacific. But despite all this appalling ignorance, five million Americans will vacation in my homeland this year and the next, and so on into the foreseeable capitalist future. Such are the intended privileges of the so-called American standard of living: ignorance of, and yet power over, one’s relations to Native peoples.
Thanks to post-war American imperialism, the ideology that the United States has no overseas colonies and is, in fact, the champion of self-determination the world over holds no greater sway than in the United States itself. To most Americans, then, Hawai’i is theirs: to use, to take, and, above all, to fantasize about long after the experience.
Just five hours away by plane from California, Hawai’i is a thousand light years away in fantasy. Mostly a state of mind, Hawai’i is the image of escape from the rawness and violence of daily American life.
Hawai’i-the word, the vision, the sound in the mind-is the fragrance and feel of soft kindness. Above all, Hawai’i is “she,” the Western image of the Native “female” in her magical allure. And if luck prevails, some of “her” will rub off on you, the visitor.
This fictional Hawai’i comes out of the depths of Western sexual sickness which demands a dark, sinfree Native for instant gratification between imperialist wars. The attraction of Hawai’i is stimulated by slick Hollywood movies, saccharine Andy Williams music, and the constant psychological deprivations of maniacal American life. Tourists flock to my Native land for escape, but they are escaping into a state of mind while participating in the destruction of a host people in a Native place.
To Hawaiians, daily life is neither soft nor kind. In fact, the political, economic, and cultural reality for most Hawaiians is hard, ugly, and cruel.
In Hawai’i, the destruction of our land and the prostitution of our culture is planned and executed by multinational corporations (both foreign-based and Hawai’i-based), by huge landowners (like the missionary-descended Castle and Cook—of Dole Pineapple fame—and others) and by collaborationist state and country governments. The ideological gloss that claims tourism to be our economic savior and the “natural” result of Hawaiian culture is manufactured by ad agencies (like the state supported Hawai’I Visitors’ Bureau) and tour companies (many of which are owned by the airlines), and spewed out to the public through complicitous cultural engines like film, television and radio, and the daily newspapers. As for the local labor unions, both rank and file and management clamor for more tourists while the construction industry lobbies incessantly for larger resorts.
The major public educational institution, the University of Hawai’i, funnels millions of taxpayer dollars into a School of Travel Industry Management and a Business School replete with a Real Estate Center and a Chair of Free Enterprise (renamed the Walker Chair to hide the crude reality of capitalism). As the propaganda arm of the tourist industry in Hawai’i, both schools churn out studies that purport to show why Hawai’i needs more golf courses, hotels, and tourist infrastructure and how Hawaiian culture is naturally” one of giving and entertaining.
Of course, state-encouraged commodification and prostitution of Native cultures through tourism is not unique to Hawai’i. It is suffered by peoples in places as disparate as Goa, Australia, Tahiti, and the Southwestern United States. Indeed, the problem is so commonplace that international organizations-eg., the Ecumenical Coalition on Third World Tourism out of Bangkok, the Center for Responsible Tourism in California, and the Third World European Network-have banded together to help give voice to Native peoples in daily resistance against corporate tourism. My focus on Hawai’i, although specific to my own culture, would likely transfer well when applied to other Native peoples. 1 Despite our similarities with other major tourist destinations, the statistical picture of the effects of corporate tourism in Hawai’i is shocking:
Fact: Over thirty years ago, at statehood, Hawai’i residents outnumbered tourists by more than 2 to 1.
Today, tourists outnumber residents by 6 to 1; they outnumber Native Hawaiians by 30 to 1. 2
Fact: According to independent economists and criminologists, “tourism has been the single most powerful factor in O’ahu’s crime rate,” including crimes against people and property. 3
Fact: Independent demographers have been pointing out for years that “tourism is the major source of population growth in Hawai’i” and that “rapid growth of the tourist industry ensures the trend toward a rapidly expanded population that receives lower per capita income.” 4
Fact: The Bank of Hawai’i has reported that the average real incomes of Hawai’i residents grow only one percent during the period from the early seventies through the early eighties, when tourism was booming.
The Census Bureau reports that personal income growth in Hawai’i during the same time was the lowest by far of any of the 50 American states. 5
Fact: Ground water supplies on O’ahu will be insufficient to meet the needs of residents and tourists by the year 2000. 6
Fact: According to the Honolulu Advertiser, “Japanese investors have spent more than $7.1 billion on their acquisitions” since 1986 in Hawai’i. This kind of volume translates into huge alienations of land and properties. For example, nearly 2,000 acres of land on the Big Island of Hawai’i was purchased for $18.5 million while over 7,000 acres on Moloka’i went for $33 million. In 1989, over $1 billion was spent by the Japanese on land alone. 7
Fact: More plants and animals from Hawai’i are now extinct or on the endangered species list than in the rest of the United States. 8
Fact: More than 20,500 families are on the Hawaiian trust lands’ list, waiting for housing or pastoral lots. 9
Fact: The median cost of a home on the most populated island of O’ahu is $450,000. 10
Fact: Hawaii has by far the worst ratio of average family income to average housing costs in the country.
This explains why families spend nearly 52 percent of their gross income for housing costs. 11
Fact: Nearly one-fifth of Hawaii’s resident population is classified as near-homeless, that is those for whom any mishap results in immediate on-the-street homelessness. 12
These kinds of random statistics render a very bleak picture, not at all what the posters and jingoistic tourist promoters would have you believe about Hawai’i.
My use of the word “tourism” in the Hawai’i context refers to a mass-based, corporately controlled industry that is both vertically and horizontally integrated such that one multi-national corporation owns an airline, the tour buses that transport tourists to the corporation-owned hotel where they eat in a corporation owned restaurant, play golf and “experience” Hawai’i on corporation-owned recreation areas, and eventually consider buying a second home built on corporation land. Profits, in this case, are mostly repatriated back to the home country. In Hawai’i, these “home” countries are Japan, Taiwan, Hong Kong, Canada, Australia, and the United States. In this sense, Hawaii is very much like a Third World colony where the local elite-the Democratic Party in our state-collaborates in the rape of Native land and people. 13
The mass nature of this kind of tourism results in mega-resort complexes on thousands of acres with demands for water and services that far surpass the needs of Hawai’i residents. These complexes may boast several hotels, golf courses, restaurants, and other “necessaries” to complete the total tourist experience.
Infrastructure is usually built by the developer in exchange for county approval of more hotel units. In Hawai’i, counties bid against each other to attract larger and larger complexes. “Rich” counties, then, are those with more resorts since they will pay more of the tax base of the county. The richest of these is the County of Honolulu which encompasses the entire island of O’ahu. This island is the site of four major tourist destinations, a major international airport, and 80 percent of the resident population of Hawai’i. The military also controls nearly 30 percent of the island with bases and airports of their own. As you might imagine, the density of certain parts of Honolulu (e.g., Waikiki) is among the highest in the world. At the present annual visitor count, more than 5 million tourists pour through O’ahu, an island of only 607 square miles. According to a statistician I met at an international tourism conference in Germany in 1986, Hawai’i suffers the greatest number of tourists per square mile of any place on earth.
With this as a background on tourism, I want to move now into the area of cultural prostitution.
“Prostitution” in this context refers to the entire institution which defines a woman (and by extension the “female”) as an object of degraded and victimized sexual value for use and exchange through the medium of money. The “prostitute” is then a woman who sells her sexual capacities and is seen, thereby, to possess and reproduce them at will, that is, by her very “nature.” The prostitute and the institution which creates and maintains her are, of course, of patriarchal origin. The pimp is the conduit of exchange, managing the commodity that is the prostitute while acting as the guard at the entry and exit gates, making sure the prostitute behaves as a prostitute by fulfilling her sexual-economic functions. The victims participate in their victimization with enormous ranges of feeling, including resistance and complicity, but the force and continuity of the institution are shaped by men.
There is much more to prostitution than my sketch reveals but this must suffice for I am interested in using the largest sense of this term as a metaphor in understanding what has happened to Hawaiian culture.
My purpose is not to exact detail or fashion a model but to convey the utter degradation of our culture and our people under corporate tourism by employing “prostitution” as an analytic category.
Finally, I have chosen four areas of Hawaiian culture to examine: our homeland, or one hanau [macron over the first a] that is Hawai’i, our lands and fisheries, the outlying seas and the heavens; our language and dance; our familial relationships; and our women.
Na Mea Hawai’i -Things Hawaiian
The mo’oleolo, or history of Hawaiians, is to be found in our genealogies. From our great cosmogonic genealogy, the Kumulipo, derives the Hawaiian identity. The “essential lesson” of this genealogy is “the interrelatedness of the Hawaiian world, and the inseparability of its constituent parts.” Thus, “the genealogy of the land, the gods, chiefs, and people intertwine one with the other, and with all aspects of the universe.”
14 [footnote 14; their is a macron over the second o in mo’oleolo]
In the mo’olelo of Papa and Wakea [there is macron over the second o in mo’oleolo and on the first a in
Wakea], earth-mother and sky-father, our islands are born: Hawai’i, Maui, O’ahu, Kaua’i, and Ni’ihau.
From their human offspring came the taro planet and from the taro came the Hawaiian people. The lessons of our genealogy are that human beings have a familial relationship to land and to the taro, our elder siblings or kua’ana.
In Hawai’i, as in all of Polynesia, younger siblings must serve and honor elder siblings who, in turn, must feed and care for their younger siblings. Therefore, Hawaiians must cultivate and husband the land which will feed and provide for the Hawaiian people. This relationship of people to land is called malama ‘aina or aloha ‘aina, care and love of the land. [There are macrons over the first a in malama and in ‘aina.]
When people and land work together harmoniously, the balance that results is called pono. In Hawaiian society, the ali’i or chiefs were required to maintain order, abundance of food, and good government. The
maka’ainana or common people worked the land and fed the chiefs; the ali’i organized production and appeased the gods. [There is a macron over the third a in maka’ainana.]
Today, malama ‘aina is called stewardship by some, although that word does not convey spiritual and genealogical connections. Nevertheless, to love and make the land flourish is a Hawaiian value. ‘ Aina, one of the words for land, means that which feeds. Kama’aina, a term for Native-born people, means child of the land. Thus is the Hawaiian relationship to land both familial and reciprocal. [There is a macron over the third a in Kama’aina.]
Our deities are also of the land: Pele is our volcano, Kane and Lono our fertile valleys and plains,
Kanaloa our ocean and all that lives within it, and so on with the 40,000 and 400,000 gods of Hawai’i. Our whole universe, physical and metaphysical, is divine. [There is a macron over the a in Kane.]
Within this world, the older people or kupuna [macron over the first u] are to cherish those who are younger, the mo’opuna. Unstinting generosity is a value and of high status. Social connections between our people are through aloha, simply translated as love but carrying with it a profoundly Hawaiian sense that is, again, familial and genealogical. Hawaiians feel aloha for Hawai’i whence they come and for their Hawaiian kin upon whom they depend. It is nearly impossible to feel or practice aloha for something that is not familial. This is why we extend familial relations to those few non-Natives whom we feel understand and can reciprocate our aloha. But aloha is freely given and freely returned, it is not and cannot be demanded, or commanded. Above all, aloha is a cultural feeling and practice that works among the people and between the people and their land.
The significance and meaning of aloha underscores the centrality of the Hawaiian language or ‘olelo [macron over the first o] to the culture. ‘Olelo means both language and tongue; mo’olelo, or history, is that which comes from the tongue, i.e., a story. Haole or white people say we have oral history, but what we have are stories passed on through the generations. These are different from the haole sense of history. To Hawaiians in traditional society, language had tremendous power, thus the phrase, i ka ‘olelo ke ola; i ka ‘olelo ka make-in language is life, in language is death. [There are macrons over the first o in ‘olelo and over the second o in mo’olelo.]
After nearly 2,000 years of speaking Hawaiian, our people suffered the near extinction of our language through its banning by the American-imposed government in 1896. In 1900, Hawai’i became a territory of the United States. All schools, government operations and official transactions were thereafter conducted in English, despite the fact that most people, including non-Natives, still spoke Hawaiian at the turn of the century.
Since 1970, ‘olelo Hawai’i, or the Hawaiian language, has undergone a tremendous revival, including the rise of language immersion schools. The State of Hawai’i now has two official languages, Hawaiian and English, and the call for Hawaiian language speakers and teachers grows louder by the day. 15 [footnote 15; there is a macron over the first o in ‘olelo.]
Along with the flowering of Hawaiian language has come a flowering of Hawaiian dance, especially in its ancient form, called hula kahiko. Dance academies, known as halau, have proliferated throughout Hawai’i as have kumu hula, or dance masters, and formal competitions where all night presentations continue for three or four days to throngs of appreciative listeners. Indeed, among Pacific Islanders, Hawaiian dance is considered one of the finest Polynesian art forms today. [There is a macron over the first a in halau.]
Of course, the cultural revitalization that Hawaiians are now experiencing and transmitting to their children is as much a repudiation of colonization by so-called Western civilization in its American form as it is a reclamation of our own past and our own ways of life. This is why cultural revitalization is often resisted and disparaged by anthropologists and others: they see very clearly that its political effect is decolonization of the mind. Thus our rejection of the nuclear family as the basic unit of society and of individualism as the best form of human expression infuriates social workers, the churches, the legal system, and educators. Hawaiians continue to have allegedly “illegitimate” children, to hanai or adopt both children and adults outside of sanctioned Western legal concepts, to hold and use land and water in a collective form rather than a private property form, and to proscribe the notion and the value that one person should strive to surpass and therefore outshine all others. All these Hawaiian values can be grouped under the idea of ‘ohana, loosely translated as family, but more accurately imaged as a group of both closely and distantly related people who share nearly everything, from land and food to children and status. Sharing is central to this value since it prevents individual decline. Of course, poverty is not thereby avoided, it is only shared with everyone in the unit. The ‘ohana works effectively when the kua’ana relationship elder sibling/younger sibling reciprocity) is practiced.
Finally, within the ‘ohana, our women are considered the lifegivers of the nation, and are accorded the respect and honor this status conveys. Our young women, like our young people in general, are the pua, or flower of our lahui, or our nation [there is a macron over the first a in lahui.] The renowned beauty of our women, especially their sexual beauty, is not considered a commodity to be hoarded by fathers and brothers but an attribute of our people. Culturally, Hawaiians are very open and free about sexual relationships, although Christianity and organized religion have done much to damage these traditional sexual values.
With this understanding of what it means to be Hawaiian, I want to move now to the prostitution of our culture by tourism.
Hawai’i itself is the female object of degraded and victimized sexual value. Our ‘aina, or lands, are not any longer the source of food and shelter, but the source of money. Land is now called real estate; rather than our mother, Papa. The American relationship of people to land is that of exploiter to exploited.
Beautiful areas, once sacred to my people, are now expensive resorts; shorelines where net fishing, seaweed gathering and crabbing occurred are more and more the exclusive domain of recreational activities: sunbathing, windsurfing, jet skiing. Now, even access to beaches near hotels is strictly regulated or denied to the local public altogether.
The phrase, malama ‘aina—to care for the land—is used by government officials to sell new projects and to convince the locals that hotels can be built with a concern for “ecology.” Hotel historians, like hotel doctors, are stationed in-house to soothe the visitors’ stay with pablum [sic] of invented myths and tales of the “primitive.” [There is a macron on the first a in malama.]
High schools and hotels adopt each other and funnel teenagers through major resorts for guided tours from kitchens to gardens to honeymoon suites in preparation for post-secondary jobs in the lowest-paid industry in the State. In the meantime, tourist appreciation kits and movies are distributed through the State Department of Education to all elementary schools. One film, unashamedly titled “What’s in it for Me?,” was devised to convince locals that tourism is, as the newspapers never tire of saying, “the only game in town.”
Of course, all this hype is necessary to hide the truth about tourism, the awful exploitative truth that the industry is the major cause of environmental degradation, low wages, land dispossession, and the highest cost of living in the United States.
While this propaganda is churned out to local residents, the commercialization of Hawaiian culture proceeds with calls for more sensitive marketing of our Native values and practices. After all, a prostitute is only as good as her income-producing talents. These talents, in Hawaiian terms, are the hula; the generosity, or aloha, of our people; the u’i or youthful beauty of our women and men; and the continuing allure of our lands and waters, that is, of our place, Hawai’i.
The selling of these talents must produce income. And the function of tourism and the State of Hawai’I is to convert these attributes into profit.
The first requirement is the transformation of the product, or the cultural attribute, much as a woman must be transformed to look like a prostitute, i.e., someone who is complicitous in her own
commodification. Thus hula dancers wear clown-like make-up, don costumes from a mix of Polynesian cultures, and behave in a manner that is smutty and salacious rather than powerfully erotic. The distance between the smutty and the erotic is precisely the distance between Western culture and Hawaiian culture.
In the hotel version of the hula, the sacredness of the dance has completely evaporated while the athleticism and sexual expression have been packaged like ornaments. The purpose is entertainment for profit rather than a joyful and truly Hawaiian celebration of human and divine nature.
But let us look at an example that is representative of literally hundreds of images that litter the pages of scores of tourist publications. From an Aloha Airlines booklet—shamelessly called the “Spirit of Aloha”— there is a characteristic portrayal of commodified hula dancers, one male and one female. The costuming of the female is more South Pacific—the Cook Islands and Tahiti—while that of the male is more Hawaiian. (He wears a Hawaiian loincloth called a malo.) The ad smugly asserts the hotel dinner service as a lu’au, a Hawaiian feast (which is misspelled) with a continuously open bar, lavish “island” buffet, and “thrilling” Polynesian revue. Needless to say; Hawaiians did not drink alcohol, eat “island” buffets, or participate in “thrilling” revues before the advent of white people in our islands. [There is a macron on the first u of lu’au.]
[Printed with the article is a copy of the advertisement for “Royal Lahaina Luau”, and the following caption is added under the advertisement: The above caricature of Polynesian people is a typical example of how corporate tourism in Hawai’i commodifies Native culture for the global tourism market. Because the selling of Hawai’i depends on the prostitution of Hawaiian culture, Hawaiians and other locals must supply the industry with compliant workers. Thus our Hawaiian people—-and not only our Hawaiian culture—-become commodities.] But back to the advertisement. Lahaina, the location of the resort and once the capital of Hawai’i, is called “royal” because of its past association with our ali’i, or chiefs. Far from being royal today, Lahaina is sadly inundated by California yuppies, drug addicts, and valley girls.
The male figure in the background is muscular, partially clothed, and unsmiling. Apparently, he is supposed to convey an image of Polynesian sexuality that is both enticing and threatening. The white women in the audience can marvel at this physique and still remain safely distant. Like the Black American male, this Polynesian man is a fantasy animal. He casts a slightly malevolent glance at our costumed maiden whose body posture and barely covered breasts contradict the innocent smile on her face.
Finally, the “wondrous allure” referred to in the ad applies to more than just the dancers in their performances; the physical beauty of Hawai’i “alive under the stars” is the larger reference. In this little grotesquerie, the falseness and commercialism fairly scream out from the page. Our language, our dance, our young people, even our costumes of eating are used to ensnare tourists. And the price is only a paltry $39.95, not much for two thousand years of culture. Of course, the hotel will rake in tens of thousands of dollars on just the lu’au alone. And our young couple will make a pittance. [There is a macron over the first u in lu’au.]
The rest of the magazine, like most tourist propaganda, commodifies virtually every part of Hawai’i: mountains, beaches, coastlines, rivers, flowers, our volcano goddess, Pele, reefs and fish, rural Hawaiian
communities, even Hawaiian activists.
The point, of course, is that everything in Hawai’i can be yours, that is, you the tourist, the non-Native, the visitor. The place, the people, the culture, even our identity as a “Native” people is for sale. Thus, the magazine, like the airline that prints it, is called Aloha. The use of this word in a capitalist context is so far removed from any Hawaiian cultural sense that it is, literally, meaningless.
Thus, Hawai’i, like a lovely woman, is there for the taking. Those with only a little money get a brief encounter, those with a lot of money, like the Japanese, get more. The State and counties will give tax breaks, build infrastructure, and have the governor personally welcome tourists to ensure they keep coming. Just as the pimp regulates prices and guards the commodity of the prostitute, so the State bargains with developers for access to Hawaiian land and culture. Who builds the biggest resorts to attract the most affluent tourists gets the best deal: more hotel rooms, golf courses, and restaurants approved. Permits are fast-tracked, height and density limits are suspended, new ground water sources are miraculously found.
Hawaiians, meanwhile, have little choice in all this. We can fill up the unemployment lines, enter the military, work in the tourist industry, or leave Hawai’i. Increasingly, Hawaiians are leaving, not by choice but out of economic necessity.
Our people who work in the industry-dancers, waiters, singers, valets, gardeners, housekeepers, bartenders, and even a few managers-make between $10,000 and $25,000 a year, an impossible salary for a family in Hawai’i. Psychologically, our young people have begun to think of tourism as the only employment opportunity, trapped as they are by the lack of alternatives. For our young women, modeling is a “cleaner” job when compared to waiting on tables, or dancing in a weekly revue, but modeling feeds on tourism and the commodification of Hawaiian women. In the end, the entire employment scene is shaped by tourism.
Despite their exploitation, Hawaiians participation in tourism raises the problem of complicity. Because wages are so low and advancement so rare, whatever complicity exists is secondary to the economic hopelessness that drives Hawaiians into industry. Refusing to contribute to the commercialization of one’s culture becomes a peripheral concern when unemployment looms.
Of course, many Hawaiians do not see tourism as part of their colonization. Thus tourism is viewed as providing jobs, not as a form of cultural prostitution. Even those who have some glimmer of critical consciousness don’t generally agree that the tourist industry prostitutes Hawaiian culture. To me, this is a measure of the depth of our mental oppression: we can’t understand our own cultural degradation because we are living it. As colonized people, we are colonized to the extent that we are unaware of our oppression. When awareness begins, then so too does de-colonization. Judging by the growing resistance to new hotels, to geothermal energy and manganese nodule mining which would supplement the tourist industry, and to increases in the sheer number of tourists, I would say that de-colonization has begun, but we have many more stages to negotiate on our path to sovereignty.
My brief excursion into the prostitution of Hawaiian culture has done no more than given an overview.
Now that you have heard a Native view, let me just leave this thought behind. If you are thinking of visiting my homeland, please don’t. We don’t want or need any more tourists, and we certainly don’t like them. If you want to help our cause, pass this message on to your friends.
Treatment for the Terminal Disease of Civil Rights Violations
The process of remedying a disease is similar to resolving the issue of eroding civil liberties. First one must diagnose the source of the problem and then take appropriate measures to deter and eliminate the threat. The ambiguity of the Constitution has created a small, but growing tumor in the heart of the civil rights of citizens. The Amendments are brief and lack tedious details which can make them open to an array of interpretations that may or may not work in favor of justice. Due to the vagueness of the Constitution, numerous case laws have been adjudicated that modified the Amendments so that the divine rights would better uphold equality and justice. These two themes are principles that the Constitution was framed upon. The ability for interpretation creates reform of the amendment through statutes, which allows the Constitution to change and become a more stable foundation for the civil liberties to stand on; however, not all changes that should be made are present in the reform.
Among the Amendments, the Sixth has undergone an extensive amount of development, most notably in the last clause where we are guaranteed “the Assistance of Counsel” in criminal a trial. This specific clause has been assessed with critical scrutiny in order to better appeal to citizens; however, among the laws passed that have ameliorated the right to legal defense, none have specified the quality of counsel one should be guaranteed. The law does not specify the level of competency or effectiveness ones lawyer should uphold, though it should. Given the systematic errors of the justice system, the threat to our 6th Amendment rights remain as a growing concern unless the state creates appropriate statutory modifications that will protect citizens from ineffective assistance of counsel.
Diagnosing a disease is the most crucial part of treatment, if one wishes to effectively annihilate the threat. In David Shipler’s book, The Rights at Risk, he locates the problem that causes our constitutional rights to be compromised, the judiciary system. Shipler claims that it is the failure of the judiciary branch of government to do its job well that creates civil rights infringements. Shipler points out the issue of the denial of these rights are not isolated cases; rather it is systematic errors in the justice system, correlated with money and location. The state has tried to ameliorate the clause guaranteeing the right to legal representation through various statutory provisions.
The Sixth Amendment has undergone an elaborate expansion process. The expansion of the Sixth Amendment started with Powell v. Alabama. In this case the Supreme Court ruled that “under the Due Process Clause of the 14th Amendment, counsel must be guaranteed to everyone facing a possible death sentence, whether in State or federal court” (Assistance of Counsel). In Johnson v. Zerbst, the 6th Amendment was further expanded, and a ruling that required “appointment of counsel for federal criminal defendants who could not afford to retain a lawyer,” was set in place (Assistance of Counsel). Another landmark case, Gideon v. Wainwright mandated that there was an obligation of the state to provide attorneys to those who could not afford one (Shipler 81). Lastly, the most relevant case to the issue of assistance of counsel is McMann v. Richardson. In the case the court recognized that “defendants facing felony charges are entitled to the effective assistance of competent counsel.” Among the case laws that have expanded the statutory right to legal representation, there is still no law that specifies “how bad the lawyer must be to violate the rights “(Shipler82). The reform of the Sixth Amendment is still in progress.
The justice system inadvertently favors the wealthy and penalizes the poor. The probability of receiving effective or ineffective assistance of counsel is largely dependent on the factor of monetary means. There is an imbalance in the location of available resources in the legal system. This causes a systematic error within the system, where the location of resources is the strongest force pulling one side to a case victory. Research has shown that “well-funded federal system public defenders do better for their clients than appointed counsel” and “among federal prosecutions that were examined, cases did not drag on as long and sentences averaged eight months shorter (Shipler 89). Since poverty stricken defendants can only rely on appointed lawyers for their criminal defense, they are the ones who usually suffer from the incompetent representation, which often results in disproportionate convictions. “The right to counsel is the right to have the effective counsel.” This absolute right has often been compromised by the state, when it appoints underpaid, underfunded, overworked or just simply bad lawyers to defend citizens whom are mostly very indigent. The “defects are not just by individual malice, but systemic failure, an uncaring set of priorities that unbalances the adversarial process of criminal justice by pouring resources into one side…while leaving the other nearly as improvised as its clients” (Shipler 88). Appointed lawyers lack many investigatory luxuries that well-funded defenders have such as the ability to hireDNAexperts or conduct mitigating evidence research, a vital component of an effective defense argument, especially in a capital case.
Monsters are not born, they are created. Many criminals that commit heinous crimes are not bred in the most ideal of conditions, to say the least. They are often products of extreme parental neglect, abuse and exposure to unseemly behaviors. Although this is not an excuse their criminal actions, it does offer an explanation for it. Conditions of their childhood are important factors to consider in a trial, for it may illuminate possible psychological damages caused in their development. Such factors are can be introduced to jurors through mitigating evidence, found and presented solely be defense counsel. To decide the criminals fate, “jurors weigh aggravating and mitigating facts: how heinous the crime on the one hand, how abusive the criminals childhood on the other” (Shipler 97). Juries need “accurate sentencing information because it is an indispensable perquisite to a reasoned determination of whether a defendant shall live or die. Thus, mitigating evidence represents not only a right available to defendants, but a safeguard to the state’s vital interest in the constitutional application of its most extreme form of punishment” (Martinez). The fate of the defendant is largely dependent on the presence or absence of these mitigating factors. The absence of mitigating circumstances can be the kiss of death for capital offenders, and the presence of it can be what spares the defendant from execution for even the most horrific crimes. “A study has shown that jurors were less likely to assign a death sentence in cases that contained one of the following types of mitigating evidence: The defendant was (i) diagnosed with schizophrenia, not medicated, and suffered from severe delusions and hallucinations, (ii) drug addicted and high at the time of the murder, (iii) diagnosed as borderline mentally retarded during childhood, or (iv) severely physically and verbally abused by his parents during childhood” (Barnett). The failure to introduce mitigating evidence thus indicates ineffective assistance, and it gives defendants the constitutional right to an appeal.
The inadequacies of attorneys should be a dire concern to us all, because they have the power to sway ones case in the two extremities of exoneration or culpability. Eduardo Santiago was convicted of the murder of Joseph Niwinski in 2000. His lawyer “failed to disclose significant and relevant mitigating evidence against the death penalty during the trial… that detailed Santiago’s troubled childhood, which included beatings and sexual molestation” (Collins). The failure to introduce this evidentiary requirement would have spared Santiago’s life, had it been disclosed during the trial. Santiago’s case eventually reached the appellate level, and “all seven members of the courts were in favor of overturning [his] death sentence” (Collins). Fortunately, the appeal system worked in the favor of the defendant who was stripped of his constitutional right to effective counsel. Santiago’s case shows the enormous difference mitigating evidence can make, it is the difference between life and death. “Death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney” (Death Penalty). In order “to preserve the Sixth Amendments defense attorneys have to dig effectively” (Shipler 100). The state guarantees the right to effective counsel, but they should also require that attorneys conduct pre-investigative research since it is a sufficient method for the achievement of a fair trial.
“Poverty drains justice from the system” (Shipler 91). Financial shortages cause primary and secondary problems in the justice system. If caseloads are high, lawyers are often stretched too thin and the state lacks money that would relieve the workload. As a result, being underpaid and overworked often hinders counsel’s performance. Lack of sufficient funding also causes the state to settle for appointing simply bad lawyers to defend clients. These are major problems especially at the capital level. “Almost all defendants who face capital charges cannot afford an attorney and rely on the state to appoint one for them. Often times appointed attorneys are overworked, underpaid, lack critical resources, and are either incompetent or inexperienced” (Death Penalty). It is because of these reasons of ineffectiveness of counsel that violations of Sixth Amendments rights occur so prevalently. “In the most extreme cases, some [lawyers in capital cases] have slept through parts of trials or have arrived under the influence of drugs and/or alcohol (Death Penalty and Arbitrariness). The cases of Washington and Burdine exemplify these extreme, but not uncommon cases of counsel ineptitude and inexperience.
“Sleeping lawyers” have become an egregious problem in the legal defense system. “Unconscious counsel equates to no counsel at all” (Weinstein). Calvin Burdine was sentenced to death for the murder of his male companion (Oshinsky). During the murder trial his lawyer fell asleep as much as ten times for as long as ten minutes each. When Burdines’s court appointed attorney was not dozing off, he referred to his client as a “fairy.” The prosecutor, meanwhile, demanded the death penalty by arguing that gays actually look forward to the rewards of prison life. “Sending a homosexual to the penitentiary,” he claimed, “certainly isn’t a very bad punishment for a homosexual” (Oshinsky). Shockingly, when the case was first appealed, it upheld the “verdict on the grounds that nothing in the law guarantees a defendant the right to a fully conscious attorney,” despite the fact that Burdines lawyer was asleep during when witnesses testified against his client. (Oshinky, Weinstein). Eventually his case was appealed again, the federal courts ruled that Burdine should be granted a new trial since there was “fundamental unfairness in [his] capital murder trial created by the consistent unconsciousness of his counsel” (Weinstein). Burdine won a new trial and his sentenced was reduced to life in prison. Burdines case shows not only the faults in the legal defense system, but faults in the appeal system as well. The Sixth Amendment did guarantee assistance of “conscious” counsel, though it should, since a sleeping lawyer is the same thing as having no lawyer at all. In addition to the errors of the justice system caused by inept “sleeping lawyers,” inexperienced lawyers also pose as a threat to the constitutional rights promised by the state.
The deficiencies of lawyers can result in unjust outcomes and irrevocable errors. Earl Washington Jr, an indigent defendant, was found guilty of the charges of rape and murder, both of which he did not commit. The conviction was largely based on a false confession made by Washington, who suffered from mild mental retardation. The false confession was deemed admissible even though “he got several details wrong” (Gold). Washington was appointed a lawyer who “had never handled a capital case before” (Innocence project). His attorney failed to “challenge the confession or hire an expert to show that Washington’s low IQ caused him to falsely confess. He called only two witnesses in Washington’s defense: Washington and his sister” (Bad Lawyering). The entire defense his counsel made lasted a mere forty minutes. Washington spent seventeen years in prison and more than nine years on death row. Washington came within nine days of execution, “before being exonerated by DNA evidence. Unfortunately, Washington was not alone” (Bad Lawyering). Many defendants condemned to capital punishment have also experienced wrongful convictions due to the errors of the justice system.
Washington’s case inspired a law “allowing inmate who claim innocence to seek DNA testing at any time” (Gold) Since the availability of this exculpatory tool, there have been “289 post-conviction DNA Exonerations in the United States” (Facts on Post-Conviction DNA Exonerations). Of those 289 exonerations, 17 were inmates on death row. Washington was just one example of the many who have been wrongly convicted based on inadequate representation. The high number of post-conviction exonerations shows that errors in the justice system are not at all isolated. The cancerous errors of the justice system have spread deep in the body of society. From Burdine and Washington’s case, the justice department must recognize that a certain caliber must be met for all lawyers but more so for appointed attorneys. Since ineffective is assistance is predominantly seen with indigent defendants, who rely on appointed counsel, the state must identify the problem it has created due to lack of sufficient funding. It must bridge the gap between the effective and ineffective representation, and grant all the right to competent counsel, which should include those whom are conscious.
The gap between effective and ineffective counsel is unfathomable to many. Most people assume if you have a lawyer, you are getting the sufficiently effective assistance you need; however, this is often not the case. In many cases, individuals have misplaced faith in the lawyers they appoint to defend their honor, leading them to untimely consequences. The state has recognized the possible deficiencies of counsel, and it has created safeguards that allow for redress if lawyers have proven to be grossly ineffective, the appeal system. What many fail to realize is that the appeal system does not always work. An argument can be made that Strickland v. Washington, is a sufficient law that protects erosions of the Sixth Amendment. This statutory provision allows defendants to appeal their case and claim that the sentencing of their trial was due to ineffective assistance. The major concern is that this provision leaves the enormous burden of having the defendant, many of whom are indigent and uneducated, to show and prove that error has occurred. Consequently, many who want an appeal are not granted permission for one. In addition, “convictions and sentences are rarely overturned for ineffective assistance of counsel,” and in the case of Henry Quaker, this held true (Shipler 83).
In the Autobiography of an Executioner, David Dow takes on Henry Quakers case at the appellate court level. Henry Quaker was wrongfully convicted of the murder of his family. Henry was represented by a flagrantly incompetent lawyer in his trial. During Quaker’s trial his attorney smelt of liquor, fell asleep, did not interview any witnesses and did not put on any evidence of his own. As a result, Henry was found guilty to all charges and sentenced to death. Quaker made an initial appeal, but unfortunately was represented with another inept lawyer whom had “neglected to complain about the inadequacies of the trial lawyer” (Dow 36). Since the issue of ineffective assistance was not examined in the state court, the federal courts would not examine it. Consequently, Dow could not make any further appeals claiming ineffective counsel, since the issue was not raised the first time. Quakers case shows that the appeal system does not always work, even when it should. Therefore, the appeals system along with the provisions of Strickland v. Washington does not provide sufficient enough protection to all from Sixth Amendment threats.
The threat to the Sixth Amendment depicts similarities to a malignant tumor; without treatment, it will metastasize and worsen the condition. If the state does not try and prevent the prevalent Sixth Amendment threats, major damage to the social fabric will likely occur. Failure of prevention will only perpetuate disproportionate convictions and punishments of poor defendants, and increase wrongful convictions of innocents, which is unconstitutional under both the 6th Amendment and the 14th Amendment clause that guarantees equal protection. The reform of the Sixth Amendment should continue with a law that mandates the appointing of optimal counseling or prevention from anything less. This change is crucial if the state wishes to reverse and make-up for the injustices perpetrated against society. The judiciary system should be solely held accountable for reviewing counsel’s performance, should the defendant claim in effective assistance; defendants should not have to carry any of the weight of this burden. In addition, standards of court appointed lawyers need to be significantly raised, so that “sleeping lawyers” do not become a commonly used practice. Lastly, resources needs to be more evenly distributed, so that one side of the defense system does not have unfair advantages over the other. All citizens no matter their socioeconomic hierarchy should be guaranteed the same level of effective and competent assistance. This is the only way for absolute justice and equality, ashes which the constitution arose from, to be achieved. Modifying the 6th Amendment to its innate nature is the only to preserve the potency of the Constitution and prevent the cancerous errors of the justice system from further spreading and deteriorating the heart of the civil liberties of society.
5.31.2012
Thank you God for this possible job opportunity in stem cell research.
Its nice to have something that will allow me to hold my head up high in the midst of all the recent unfortunate events, “real world” problems, and pressure to reach and maintain a certain caliber.#COUNTINGMYBLESSINGS
5.24.2012
A temporary hiatus from anything associated with the words social and network. 2 weeks till finals. 3 weeks till my arrival in the greatest city on the west coast. Time for sleep deprivation, copious amounts of caffeine consumption, and relentless encoding and consolidation of information in the medial temporal lobe.
“The difference between a successful person and others is not a lack of strength, not a lack of knowledge, but rather a lack in will.”
