By Christopher Warburton.
Americans love the Sixth Amendment for obvious reasons. Its motive is unquestionable but its implementation has stirred uncompromising controversy. It gives the accused the right to a speedy trial and could be comprehensively associated with the tradition of the writ of Habeas Corpus, a Latin phrase for an order to “bring or produce the body” that is issued by a legal authority with administrative or juridical powers. Originating from English jurisprudence, the underlying rationale is to ensure that nobody is illegally institutionalized without due process. As such, it was originally intended to limit abusive state authority. Understandably, it is easy to envision why there could hardly be any civilized order that relishes the use of abusive authority in whatever form.
In 1972, in a case known as BARKER v. WINGO, the Supreme Court tried to put the concept of reasonable delay in perspective by listing four criteria: (i) the length of the delay, (ii) the reasons for delay, (iii) the harmful effects of the delay on a defendant, and (iv) whether the defendant asked for a prompt or speedy trial. These are very reasonable paradigms for what is fair, right, and reasonable or appropriate (EX AEQUO ET BONO). In essence, as a principle, tenet, or aphorism of universal law, it will be very difficult to argue that only defendants should be entitled to just and speedy trial. One should certainly hope that defendants and quasi-administrative judicial institutions should not be standing the principle on its head if the principle is to have far-reaching implications or general acceptance beyond abusive state behavior.
Not everyone agreed with the Supreme Court in the 1970s because the dismissal of criminals for abusive state behavior was seen as a bonanza or “windfall” for criminals. That is, in the arduous task of balancing the rights of the accused and the interest of society, the ruling hardly provided general satisfaction. But, in the US, the speedy trial conundrum was nothing new in the in the 1970s. The Supreme Court unsatisfactorily dealt with the issue in the Beaver case of 1905 by allowing delay to be contingent on imprecise circumstances. In effect, the 1972 ruling was an incremental judicial improvement.
Notwithstanding the evolution and apprehension surrounding the Barker case, one thing is clear: abusive authority cannot and should not be tolerated in any society even when it means emotional institutionalization by corruption rather than abusive physical institutionalization. For a very long time, the inability of the EEOC to enforce human rights law in a timely manner, and therefore to administer timely justice, has undergone very little scrutiny; only because defendants become beneficiaries rather than victims of administrative tardiness. That is, in the perverse world of the EEOC, defendants need not have speedy trials when it is in the best interest of the defendants to enjoy outside (implementation) lags. Victims of civil rights abuses can wait for years or eternity before they receive any semblance of justice in this world or the next.
How does the EEOC delay the administration of justice for civil rights victims? The modus operandi of the EEOC should be very familiar by now: (a) collude with defendants and or accept bribes to determine outcomes or timelines, (b) pigeonhole complaints for an inordinately long amount of time so that they can gather a good amount of dust to frustrate complainants (c) contemptuously refuse to take or return telephone calls, (d) incrementally assign multiple investigators (that is, one at a time) to the same case over a protracted period of time, (e) deliberately conduct sham investigations over a very long period of time, and (f) embrace the psychology that if sufficient time is wasted, complainants will surrender and the vicious cycle of corruption and delay of justice will continue unabated.
The visionary pronouncements of the EEOC would have been laughable if they were not very serious frauds that have adversely impacted the lives of thousands of people. Our vision: “A Strong and Prosperous Nation Secured Through a Fair and Inclusive Workplace.” Our mission: “We Promote Equality of Opportunity in the Workplace and Enforce Federal Laws Prohibiting Employment Discrimination.”
The public data and the operations of the EEOC suggest otherwise. I have already evaluated part of the data that have been released by the agency and the sombre and doleful revelations of the data need no further analysis here. Relevant information can be extrapolated from a previous piece in the following link:
http://thedailyjournalist.com/the-strategist/fifty-years-after-the-fact-how-viable-is-the-civil-rights-act-of-1964/
This piece is dedicated to justice and labor productivity, and it is also based on data that is freely available; specifically, Congressional Budget Justification for the financial year of 2012, the year after which about 71 percent of cases were summarily dismissed by the EEOC, and the year after which only 15.3 percent of complaints had merit resolutions (whatever that triumph might mean to the EEOC).
When economists talk about productivity, they generally consider output per hour and the efficiency with which inputs are allocated, combined, and managed. One can easily imagine without much difficulty that technological progress has made it possible for labor to become much more efficient in some areas of the world, and today, EEOC complaints and responses can be filed electronically. One must also presuppose that labor is not of poor quality for it to be efficient. In effect, adequate education or skill and technological innovation are complementary preconditions for the use of efficient labor. Therefore, one should naturally expect EEOC investigators to know how to count and itemize things. Without any tolerable level of incompetence that is detrimental to society, it should not be irrational to presume that the EEOC officials should be better educated and trained than high school dropouts.
Not surprisingly, when economists think about productivity and efficiency, they are thinking about cost and allocation of limited resources. Hence, if an agency is asking for money to conduct inefficient work, say $18m more than the previous year, society will be misallocating its scarce resources by redirecting inadequate resources from much more productive uses, say education and investment, to unproductive or inefficient uses that are mired in corruption. Productivity succinctly means increasing output while reducing cost. It is astounding that the productivity of the EEOC personnel has not been appropriately scrutinized over the years. The information about its performance is clearly indicative of troubling sterility. The marginal cost to the US is excessively greater than the marginal benefit that the US has received over the years. Surely, there is nothing productive about ensuring the unemployment of thousands of people.
Evidently, because we now know that investigators collect money and overtime pay for sham investigators, the issue cannot be that the investigators and Directors are overworked or underpaid. We also know that their workload is not as punishing as they might want us to believe for an annualized average case load of 128 cases. Actually, the hypothesis that it could take much longer than 180 days to process cases should be summarily rejected, especially because that is the time that it takes in some cases to pass one case from one investigator to another without the commencement of any investigation.
Some Americans do far more back-breaking work with dedication and purpose for little or no compensation than the EEOC public officials with an annualized caseload of about 128 cases. Quite apart from the poor output of its employees, it is pertinent to note that corruption and contrivance make it impossible to reach a rational conclusion that the EEOC employees are productive and efficient. From a perverse point of view, it is extremely difficult to fathom how the grease hypothesis, the hypothesis that corruption speeds up the wheels of commerce or transactions, could provide forgiving circumstances and justification for the very poor and illegal performance of some of the EEOC employees.
“The EEOC is charged with ending employment discrimination on the basis of race, color, national
origin, sex, religion, pregnancy, age, disability, and family medical history or genetic information. Since
the establishment of the EEOC in 1965, much progress has been made in reducing illegal discrimination
in the American workplace. Yet discrimination continues to be a substantial problem for too many people
in the United States of America. Significant work remains to be done. While we are grateful for the
increased appropriations and are putting them to good use, we continue to face unprecedented
administrative challenges.”
Really?
“Under our projections, even with the additional 30 FTE frontline investigators provided in the 2012 Budget, the pending inventory is expected to reach nearly 100,834 charges at the end of fiscal year 2012 and rise to 144,217 charges at the end of fiscal year 2016. Our charge data projections also show that in 2012 our investigators will carry an average caseload of 128. This caseload will lead to an average resolution time far exceeding a 180 day average affecting all parties to the investigation.”
What the EEOC does not understand is that apathy, incompetence, and corruption are not problem-solving characteristics. Rather, they are problem-compounding attributes that use up more of society’s scarce resources for worthless endeavors. There are obvious reasons why complaints are controversially projected to increase. The very basic reason is that all agencies desire more money for their operations, but a more paramount and substantive reason is that rogue employers who engage in criminal activity are no longer worried about the EEOC. They know that investigators and Directors could be bribed and everything will be Kumbaya (in perfect harmony).
Realistically, the EEOC has squandered its moral authority on civil rights issues and created an environment of moral hazard in which rogue employers, unlike the principled ones, can now take risks only because they know that the EEOC is in their pockets. That is, they do not have to completely incur the costs for violating civil rights laws. Under such circumstances, it is ambitiously speculative to project significant increases in complaints. In the history of the civil rights movement, the agency has created an unprecedented disincentive for people to ponder over their course of action for remediating civil rights violations. Victims of civil rights abuses must now think about the opportunity costs of registering their complaints with the agency in order to achieve any semblance of justice in a timely manner. In more precise terms, the agency is no longer a friend of victims of civil rights abuses but a friend of big business and robber barons.
Going forward, the central issue is not a matter of the trajectory of complaints, but whether or not people will look up to the EEOC as an administrator of justice or injustice. By its lack of productivity, its culture and tolerance of corruption, and its predilection for delaying justice, it is naiveté and feckless stupidity for the EEOC to think that people will continue to have confidence in its operations. It is time to restore the promise of the civil rights movement without the current culture and composition of EEOC.
The Supreme Court was correct: (i) justice must not be delayed, (ii) the reasons for delay must be reasonable, (iii) delay has harmful effects on a defendant [and I must add, complainants], and (iv) requests for a prompt or speedy trial must be respected. Lack of productivity is antithetical to the administration of justice and corruption should never be an acceptable instrument to prolong the realization of justice.
