New York State has a little known legal procedure called Article 78.  Article 78 allows you, once you’ve “exhausted all administrative remedies” with a government agency, to apply to the court for relief if you’ve been deprived of something without a good reason.   The government agency, like most private businesses, which are given tremendous latitude with the profit-based “business judgement rule”, can show virtually any reason for its actions.   As long as there is any reason at all, even a theoretical one, you lose again.   The burden is on you to show that the decision is based on nothing at all, is, in fact, “arbitrary and capricious,” in the words of Article 78.

Presumably if the ruling is simply arbitrary, too bad.  If the decision is capricious, without also being arbitrary, it is upheld and you are, once again, shit out of luck.  You must prove that no evidence to support the decision against you was submitted, that your evidence was ignored, that the agency didn’t follow its own policies, that your opportunity to be heard was utterly devoid of any of the niceties of due process.   Arbitrary and capricious is a low bar, in fact, it’s a bar painted on the ground, almost anything can drag itself over it.   Still, it’s surprising how many bureaucratic decisions are both arbitrary and capricious.  

The punchline, of course, and you know there has to be one in our puckish legal system, is that the statute of limitations to bring an Article 78 proceeding is arbitrarily and capriciously short, either 90 or 120 days, depending, and good luck figuring out which applies to which agency.  Once your SOL is up you are SOL*.  

There is also no requirement that decisions subject to Article 78 review inform you of the existence of Article 78.   That would give people who are arbitrarily and capriciously fucked an unfair advantage, obviously.   The best thing to do, if you know a lawyer who tells you about Article 78, is get your papers ready to file in court before the decision against you is made.   

I am thinking of Article 78 out of the blue, another example of the way our laws are set up, with every appearance of fairness and transparency, but written as compromises with the powerful to favor those powerful entities who like their sex with or without consent.   Many of the indignities suffered by masses of people are covered under the maxim de minimis non curat lex, “the law does not concern itself with trifles.”  I was in court today, on jury duty, and I was reminded of the whole hideous enterprise as I bided my time waiting to be dismissed from service.

At lunchtime I went over to Chinatown, passing under part of the Lower Manhattan Detention Center.   I recall it was still being built in 1991 or ’92 when I took my third grade class from Harlem to Chinatown on the A train.  The parent chaperones didn’t show up on the day of the trip, and against the advice of all of my colleagues, me and about eighteen little Harlemites made our way, on a very hot day,  to amaze the waiters at Hop Kee with the kids’ skill with chopsticks.  It was a great trip.  

On the way back to the A train we passed the Detention Center, then still under construction.   A worker was hosing down the wet cement.  Fatima, looking thirstily at the splashing water, asked me if the man would give them a drink.  I said I had no idea, suggested she go find out.  She asked him and he smiled and patiently held the hose as all the kids drank their fill.   Fatima was delighted with herself and told me happily, her face gleaming with water, “see, Mr. Widaen, it never hurts to ask!”

That detention center was at the time named for Bernie Kerik, a crony of Rudy Giuliani.  Giuliani, a glory seeking, autocratic, former federal prosecutor, was mayor of New York at the time.  He told his cops to take no shit from punks on the street.  Under his watch the city quietly paid millions in police brutality cases, and no doubt saved just as many millions in cases that were never brought, like the ones where all the punks/victims were deported.  Kerik was Giuliani’s friend and enforcer.  

The complex of holding cells by the criminal court was called the Bernard Kerik Detention Center while it was being built and for years, until, in fact, the very day Kerik was sentenced to prison time for being a flagrantly corrupt and lawless asshole.   I saw the next day that the sign had finally been changed.   I think it’s called the Lower Manhattan Detention Center now.  I passed it on the way to and from lunch today.  It got me thinking about detention.  

An abstraction to most Americans, the lock-up is  also brutal reality to millions of Americans.  We have more people locked up here than any nation in the civilized, or even uncivilized, world.  A chart I saw the other day, based on FBI statistics, shows that 46% of the current American federal prison population is locked up for nonviolent drug-related offenses.  This site has some good charts and articles, click through the charts midway down the first page to see some eye-popping statistics.  (“The death of one man is a tragedy, the death of a million is a statistic” — attributed to Stalin).

My point is, in America, for the crime of preferring one recreational drug over another, you can be locked up for a long time.   In 2017, under a law pushed through by Nixon to punish and incapacitate his hated enemies, hippies and blacks, to fuck them up in perpetuity, going on fifty years now.  It’s the law, so be assured there is nothing arbitrary and capricious about it.

The power of state violence is an awesome thing we are all grateful for when it is used to save us from violence, from predation.  Some people are violent criminals and need to be taken off the street.  Forcing a non-violent person, who threatens nobody, to lie on the ground at gunpoint, shackling them, shooting them, locking them down, are not things to be done lightly.  Except that here, increasingly, they are, by militarized police departments for offenses like disrespect and running to escape prison time for the illegal drugs in your pocket. 

I felt like a fish in a frying pan today during seven boring hours on jury duty– the full power of the state and its armed agents ready to slap me down if I did something stupid.   Imagine being locked in a cage, subjected to the violence of the state day after day after day, say the wrong thing and get a crack across the face.  Your word against mine, maggot.   Solitary confinement for you, asshole. Picture being locked up awaiting trial and sentencing to a long term in the slammer because you like to drink scotch rather than bourbon.   USA!  USA!!!!


*  Louis Armstrong recorded a tune called SOL Blues, Shit out of Luck Blues.  SOL is also a law student abbreviation for statute of limitations, the timeframe for bringing a legal action.


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