On the Denial of Due Process in Berkeley

Berkeley City Politics and the Denial Of Due Process

In my last few articles about Berkeley city council, I have described a certain structural corruption that emerges from an inherently anti-democratic dimension of representationism. In particular, the articles refer to council’s denial of protection of its constituencies with respect to affordable housing and homelessness. And they describe how council has hidden behind crises of its own making in order to foster a process of gentrification by which a few people will get rich while destroying neighborhoods, creating massive dislocation of residents.

Exemplary of this structural corruption is the paradigm of "public hearings." Touted by theory as the site of public participation, the hearing structure not only operates against that, but it generates a political class distinction between the public and corporate representatives.

The concept of “political class,” though it may be unfamiliar, is easily recognized as an aggravation of a vertical social hierarchy. Anti-democratic in nature, it is characterized by political privilege. Its existence calls for pragmatic alternatives that will rescue the city’s constituencies of its structural betrayals.

One place to look for “pragmatic alternatives” might be the US constitution. In particular, that document guarantees “due process” as an equalizing mechanism in the juridical domain. Were it implemented in the political realm, it would disable the formation of political class distinctions by obstructing structural corruption.

Today, we find that the principle of due process is routinely violated in the US by the police, by the courts, and by city government.

The concept of due process
The constitutional principle of due process is introduced in the 5th Amendment: “No person shall be … deprived of life, liberty, or property without due process of law.” In the 14th Amendment, this is repeated in the context of “equal protection of the laws.” It is interesting to note that, insofar as the overall aim of the amendments has been to augment the ideal of democratic structure, their existence is a tacit admission that, in the main body of that document, that ideal is lacking. According to Black’s Law Distionary, due process is the “conduct of legal proceedings … for the protection of private rights, including … a fair hearing before a tribunal with the power to decide [judiciously where a] deprivation of a significant life, liberty, or property interest will occur.” [It’s a dictionary, so its alphabetical.]

The future tense in Black’s last clause is important. It signifies that the legal hearings concerning possible deprivation are to occur before the act of deprivation, if they are to serve purpose of protecting individual rights.

In short, it is because “due process” gives individuals a voice and a place of standing against what institutions and government agencies might do to them that it is an equalizing mechanism.

One of the most severe violations of due process practiced today in this country is “asset forfeiture.” In asset forfeiture, the police can confiscate any property belonging to an arrestee without a hearing if they suspect that the property has been involved in criminal activity. In such cases, the police fallaciously assume judicial standing in determining (rather than suspecting) an an activity as criminal, and proclaiming certain property as instrumental to it. The "defendant" against this confiscation has the right to apply for restitution of his/her property. But because this occurs only after the deprivation of property or liberty, it constitutes appeal, and not due process. Appeal and due process are not the same thing.

To grasp the full difference between due process and appeal, consider a case of deprivation of life. This happened to Kayla Moore at the hands of Berkeley police. She was going through an emotional crisis. An acquaintance called for mental health assistance. Unfortunately, the police responded. They barged in to her apartment, started ordering her around, and when she reacted negatively to this, threw her to the floor, and sat on her while they handcuffed her. She died from suffocation. Appeal of her deprivation would have no meaning.

As a corollary, this highlights the fact that handcuffing a person without an arrest warrant or probable cause of a crime is a violation of due process, depriving the person of their liberty. It is a violation that has become routine for the police throughout the US.

When the police break up a homeless encampment, as they have done many times in Berkeley in the last few years, they confiscate the property of the people they displace without due process. If they hide behind “asset forfeiture” in these confiscations, then it is the police themselves that are determining the encampment to be criminal – autonomously, with impunity, and without due process. Indeed, all police impunity entails a violation of due process. But when police actions cause the deprivation of property that a person needs for their very survival, such as clothing, sleeping bags, blankets, tents, etc., items without which people who live exposed to the elements may suffer ill health or death, then the police are committing the crime of endangering lives. To threaten a person with death by whatever means is a felony.

We can extend this to the issue of human rights. Liberty is the general category under which rights, such as speech, press, or association are to be guaranteed. Any violation of those rights, as a deprivation of liberty, must be accompanied by some form of due process. When the homeless set up an informational tent at Berkeley City Hall to protest their criminalization at the hands of new anti-homeless measures, they are exercising their right to free speech, which was then suppressed by the police who confiscated the tent, thereby proclaiming the protest it expressed to be criminal.

Now in what ways does city council violate due process? Let us return to the “hearing paradigm.”

In the representationist system, the only avenue that people have, acting in their own community interests, for influencing council’s decisions is through letters and comments made in public hearings. Given the recent spate of controversial issues raised by council, the lines of speakers have often been very long. It is a process that most people find both frustrating and humiliating.

In a hearing, people line up to speak in turn, each person having only a minutes or two, depending on the mayor’s will. If a group comes to address council as a group, its ability to present a coherent and cohesive argument is hobbled by this structure. Its argument gets fragmented into brief pieces, with no continuity or order. And its cohesion is lost in an arbitrary sequence of positions for or against the issue. Speakers are reduced to cyphers whose individual ideas or distinct arguments are reduced to quick statements of diluted and generalized character. The whole becomes a form of non-participation.

The experience becomes humiliating in two ways. When a greater number of speakers appears, bespeaking a high degree of concern for the issue, each speaker time is reduced. This implies that the council is not concerned with the concerns of the people, but only with getting through the process. (One councilmember has heard to say, “if not so many people spoke, we could get some work done”). Secondly, the ideas or terms that people present hardly ever appear in the subsequent deliberations of the councilmembers. The hearing becomes a wholly pro forma process which council is under no obligation to incorporate into its thinking or deliberations. The hearing is reduced to one monologue after another, with no intereaction and no feedback to those who took the time to attend the meeting.

But there is another side to the hearing. There are those who belong to groups, institutions, corporations, etc. in whose interests the policy in question is being promulgated. They come by invitation, and are given a table to sit at while they provide the reports that council has requested. Their participation is more than mere commentary or testimony. In providing information or supportive data for council’s projects, they get to enter into dialogue with the council, and their ideas then become part of the issue’s articulation. Thus they are honored with real participation in the decision-making process. In that sense, they are granted the "privilege" of participation through dialogue.

Insofar as neighborhood constituencies are not granted such amenities (dialogue, a seat at the table, participation in decision-making), they are relegated to the far side of a political divide. And this divide, engendered by institutional structure and the privileges it grants, constitutes a political class distinction – generally between institutionalities and constituencies.

To the extent a hierarchy is created between political classes through this structural bestowal of privileges, the equalizing capabilities of due process become highly relevant.

In the absence of those equalizing capacities, the “hearing process” and the political class distinction it permits operate against the fundamental principle of democracy. That principle is that those who will be affected by a policy should be the ones to articulate the issues of the policy and decide on the policy itself. When corporate developers present projects to the Planning Dept., those proposals very often portend significant changes to a neighborhood economically. Gentrification, for instance, will be accompanied by resident dislocation, a loss of local economic infrastructure, and glutted traffic patterns, among other things. In consequence, the neighborhood in an organized fashion should be able to participate in the design, function, and effects of development projects, in order to defend itself against such disruption. While this is prevented by the insularity of the planning process, it is also obviated by the reductive monologic character of constituent participation (hearings). Without due process with respect to development policies that will effect them, neighborhood constituencies are simply reduced to appeal (which then occur in the form of more "hearings"). Without substantial participation in the planning process by an organized neighborhood, urban development takes a form similar to asset forfeiture, but with the formation of political class difference.

When this political class difference erupts into open conflict, as it has with the many calls for justice against the deprivation of life committed by the police, you have a real class struggle between the police (institutionality) and social justice movements.

Gentrification occurs when housing development caters to high income residents. Its side effects are arbitrary rent increases for low income families, land speculation that raises real estate values, the closure of local stores and restaurants that form the economic infrastructure for the (soon to be) former residents, with a steady increase in the cost of living and taxes. This process has begun in Berkeley. Enormous buildings, with seventy to a hundred market-rate apartments – which now rent at rates only high income people can afford – will change the nature and stability of many neighborhoods. Those driven out of their homes by landlords opportuning on the process will be suffering a form of economic eviction against which council offers no protection – nor does it act against the Costa-Hawkins Act that it claims ties its hands.

Were the process to be democratic, local neighborhood assemblies would be able to participate in planning the changes, in defending what they valued as a community, and in requiring development that would benefit the community – such as affordable housing (with rents at 30% of income). That would mean having a seat at the planning tables for each specific development project, with a vote.

Suppose due process was provided
Let us envision a political process in which due process, and the fundamental principle of democracy were firmly in effect. How would due process operate in our political context as an equalization mechanism serving to guarantee real democratic participation?

Suppose some 50 people showed up to argue an issue (for and against) that council was considering. Due process would require that they be given more time to speak rather than less. It would also require a space for dialogue between the parties and with the councilmembers directly (equal standing). In other words, it would having the ability to transform the council meeting into a form of townhall in which the parties involved, arguing coherently and with cohesion, could actually reason with each other, and the antagonism between logic, vision, and prurient interest could be brought out into the open, with the discarding of irrelevant arguments. The aim would be a conjunction on the issue that would then become the eventual council resolution. In other words, if sufficient numbers of people took the time to show up, they would not be penalized, but rather incorporated into a working session involving all engaged parties. Thus, both the fundamental principle of democracy and the operation of due process would be fulfilled.

Now, if we take this townhall idea and project it down to the local level, it would form the basis for a real renovation of the idea of representation itself. At the neighborhood level, on-going assemblies could not only be a form of townhall, but a focused local decision-making body, open to all in its self-defined area. It would be an arena in which a neighborhood could decide what it wanted to change, what needed changing, what needed development, and what form that development should take (e.g. affordable housing, mixed-use, inclusionary housing, etc.). Insofar as these assemblies discussed and made decisions about their neighborhood affairs, those they elected to represent them at council townhall meetings, or planning sessions with the Planning Dept., would have real ideas and real decisions to represent – unlike elected representatives who now represent only themselves and a mute demographic. In that sense, it would replace empty representation with meaningful representation.

Ultimately, the neighborhood assembly would embody the substitution of a horizontal mode of decision-making using dialogue among equals for the vertical and hierarchical mode of making decisions in council and commissions. This would not be due process as such; it would be the participation that due process was designed to protect. In such a horizontal structure, privilege would become a form of anti-social behavior. Privilege establishes inequality. It assumes hierarchy, as the source from which it is granted, and embodies the enhancing of that hierarchy. The essence of due process is undoing established privilege, and re-equalizing the standing and rights between people and institutions.