The State of Aloha

Near St. Paul’s Cathedral near the center of London stands a grand and majestic courthouse. The Old Bailey is considered the symbolic home of the British criminal justice system. It’s part of our shared legal heritage. The common law tradition — a legal system based on the precedent of the cases before it — was brought to the American colonies and independently planted here in the Hawaiian Kingdom.

Unlike many historic courthouses, the one on Central Criminal Court is fully functional. And it began the year with a bombshell.

The case began in 2018 when the United States charged Julian Assange, the co-founder of WikiLeaks — a website disseminating classified documents and diplomatic cables revealing intelligence secrets — with violating the Espionage Act. The problem was that Assange was in London.

Before the United States could pluck Assange out of England and prosecute him, Assange challenged his removal in the British courts. His lawyers argued that this is a politically motivated prosecution and that he had a right to shed light on government misconduct.

He might be right. The Espionage Act has been used for going after those with unpopular views for more than a century. Assange has joined the likes of avowed socialist Eugene Debs, who ran for president from a jail cell; anarchist Emma Goldman, who was deported to the Soviet Union; Julius and Ethel Rosenberg, spies who were executed in the 1950s; and more recent defendants like Daniel Ellsberg, the whistleblower behind the Pentagon Papers during the Vietnam War; and Edward Snowden, the disillusioned security analyst who worked in Hawaii.

This week, after hearing evidence in the Old Bailey for months, Judge Vanessa Baraitser issued her decision. Her ruling disappointed just about everyone. Assange’s supporters were dismayed by her rejection of the claim that Assange would not receive a fair trial in America. Civil libertarians also lamented at her dismantling of the argument that Assange was a freedom-fighting journalist who enjoyed the right to bring readers the truth.

But their disappointment paled in comparison to the dismay of the United States government. It came down to our country’s carceral state. According to Judge Baraitser, Assange risks the very real possibility of being held in a concrete cell 23 hours a day without access to reading and writing materials. The one hour of exercise takes place in the middle of the night, when other inmates are asleep.

“Mr. Assange faces the bleak prospect of severely restrictive detention conditions designed to remove physical contact and reduce social interaction and contact with the outside world to a bare minimum,” she wrote in her decision. “He faces these prospects as someone with a diagnosis of clinical depression and persistent thoughts of suicide.”

The judge was convinced that these atrocious conditions and his fragile mental state may drive him to suicide. She blocked extradition to the United States.

That our country’s treatment of prisoners is so oppressive that an English jurist refused our government’s request to fetch Assange is astonishing. Our penchant to lock people up for decades and confine those whom we dislike in suicide-inducing conditions has prompted a judge steeped in the common law tradition, which we have proudly inherited, at one of the most enduring symbols of the criminal justice system, to prevent our government from bringing an accused to court.

It exposes to the world how we treat our prisoners. Our country has the highest incarceration rate in the world. Hawaii keeps approximately 3,500 souls behind bars. One thousand are held in a private prison on the Mainland. The rest are in facilities scattered across the islands.

And while most inmates are not subjected to the stark isolation described by Judge Baraitser, Hawaii’s inmates are part of the nationwide problem of mass incarceration. Overcrowding is the norm here. Unlike Assange, the vast majority of our inmates are people of color; particularly Native Hawaiians.

And what about the way we treat our own incarcerated here in Hawaii? In the midst of this pandemic, the largest concentration of infections in our state is not a hotel, condominium complex or a veteran’s home. It’s at our largest prison, the Halawa Correctional Facility. The response has been underwhelming. In fact, former Honolulu Mayor Kirk Caldwell has suggested that the incarcerated inmates who contracted the coronavirus be excluded from the daily count. Critics denounced the suggestion that inmates would be ignored.

As for Assange, the United States plans to appeal the ruling that came out of the Old Bailey this week. Perhaps it will prevail and perhaps Assange will eventually be shipped here to face charges. He might even be held in custody in a bleak and barren concrete cell. But the ruling, even if it is overturned, should remind us Americans that when it comes to the way we treat inmates, the whole world is watching.

* Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com. “The State of Aloha” alternates Fridays with Sarah Ruppenthal’s “Neighbors.”


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