Tag Archives: society

Rights for others are about us, not them

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This is a post about my personal philosophy because I feel like it’s important for us to think about the reasons behind how we view the world.

I sometimes see people express indignation when criminals get civil rights protections or when non-citizens get the rights enumerated in the Constitution. I can understand the reasoning, but it doesn’t fit with my principles for governance. I believe that the rights we give to the others within our society are about us, not them.

Many of the rights are fundamental human rights that should apply to everyone, of course. Let’s consider those a given for now.

The rights that criminals, or suspected criminals, receive are not for them. They’re a protection for us against ourselves. It should be hard for the government to convict someone of a crime, because that protects all of us from malicious prosecution and persecution by hostile governments. And our prisoners should be treated humanely, even the ones who have committed the most heinous of crimes. It’s not because they deserve it. It’s because we want to be a just and merciful society.

Extending rights to non-citizens is a direct reflection of how the Constitution was written. The Constitution does not grant rights so much as list a subset of rights that the government can’t (or can conditionally) curtail. The idea of American governance is that the government derives its authority from the people, and thus only can do what it is permitted to do. The Constitution largely refers to “people”, not “citizens” for a reason.

What it comes down to is that I want my government to reflect the world I want to live in, regardless of how others behave or what they “deserve.”

Book Review: Pleading Out

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I was only a few pages in when Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class made me angry. It wasn’t because of how Dan Canon wrote. It was because of what he wrote. In Bordenkircher v. Hayes, the Supreme Court held that prosecutors could, in effect, punish a defendant for asserting their right to a trial. Potter Stewart wrote that this was part of “any legitimate system which tolerates and encourages the negotiation of pleas.”

While legal systems in the United States do tolerate and encourage plea deals, a reasonable person can question the legitimacy of the system. That Paul Hayes received a life sentence for forging a $88.30 check calls the legitimacy of the system into question.

Canon spends the rest of the book making the case that the plea bargain system as practiced in the United States is not legitimate. It does not serve the interests of justice, but of power. “The American legal system,” he writes, “was designed by people in power as a tool to keep them in power whatever the cost.”

American exceptionalism

Plea bargains are rare in other countries. In the United States, 97% of convictions come from guilty pleas. Most of those are bargained. Why is that? Prior to the 1830s, plea bargains were rare in America. Attitudes started shifting when labor solidarity developed in the early industrial factories. Plea bargaining hid prosecution from the public eye, preventing scrutiny and revolt.

The expansion of federal crimes after Prohibition led to a need to process cases more efficiently. “What we have inherited is an amoral system of criminal proceedings; it cannot be called criminal justice. Expediency, not fairness, is the principal concern.”

It’s no coincidence that the United States has the highest incarceration rate and also the highest plea bargain rate. As Michelle Alexander explores in greater depth in The New Jim Crow, the legal system creates a permanent criminal underclass that has long-lasting effects.

Liberty and justice for some

The high volume of cases means that lawyers can’t keep up. Prosecutors can’t screen cases to drop the obviously bad ones. Worse, defense attorneys can’t mount vigorous defenses. Canon notes that in 15% of exonerations, the defendant gave a false confession. Thousands of innocent people are sitting in jail today because the police or prosecutors railroaded them into confessing to a crime they didn’t commit.

Because plea bargains are secretive, there’s no accountability. Wealthy defendants can work themselves into a sweet deal. Poor and middle-class defendants have to take what the prosecution offers. If they dare insist on a trial, they face persecution, not prosecution. Ask Paul Hayes. This does not benefit society.

So what do we do?

It doesn’t have to be this way. Canon writes about the decade when Alaska eliminated plea bargaining. The system adjusted. Prosecutors dropped cases they couldn’t—or shouldn’t—prove. Police got more careful with their investigations, knowing they’d actually be accountable. It wasn’t perfect, but it was an improvement.

Our current system doesn’t have to be our system forever. But it won’t change on it’s own. The first step is an informed populace. That’s why I’d recommend Pleading Out to anyone who cares about justice.

A sign of the times: basketball coaches speak up

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I recently read an article in the local newspaper. Purdue men’s basketball coach Matt Painter was talking about the difference in how Black Lives Matter protesters were handled versus the insurrectionists who invaded the Capitol. Specifically, he said:

It’s just the double standard more than anything. America needs to see that—especially white America—and see the double standard that’s been going on for years. For that to happen, just makes you sick to your stomach.

This struck me as a significant statement. Not so much for what he said (which I agree with wholeheartedly), but the fact that he said it. I’ve never met Matt Painter. I know very little about him personally. This is probably by design. I don’t remember Painter offering much of a public opinion on anything that isn’t directly related to his basketball program in the decade and a half he’s been at Purdue.

For him to go on record with a statement like this, particularly in a right-leaning state like Indiana, is a sign of how the conversation has shifted. 2020 brought a lot of “hidden” things to the fore. I’m glad to see that basketball coaches, even generally tight-lipped ones, are comfortable making statements like this.

A few hours to the south, the University of Kentucky defended players kneeling for the national anthem in response to the insurrection. In fact, UK coach John Calipari joined his players in kneeling. A local sheriff burned his UK shirts and called for Calipari to be fired. Officials in another Kentucky county unanimously called for public funding to be pulled from the University.

To be sure, there’s an element of self-serving here. NCAA basketball players are disproportionately black, so Painter and Calipari are appealing to their target audiences. But they both coach in states that are both very into basketball and very conservative. It’s likely that a significant portion of fans (and donors) don’t share their views. They are using their privilege to speak up to an audience that may not want to hear the message.

One could certainly argue that these acts are insufficient on their own. I agree and acknowledge that I don’t know what else they may do more quietly. And this won’t solve the problem, but shows that acknowledging racial disparity in policing is mainstream. This is encouraging. We must first recognize problems before we can fix them. Coaches, who generally try to avoid controversy, using their platform to speak up is a good first step.

We don’t have to accept the way things are

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If you’ve read this week’s Newsletter Fiasco, you’ve already seen this. But I wanted to share it again because it has been weighing on my mind…

We are living in one hell of a moment. A moment where we decide if we support justice or if we are content to ignore injustice to preserve our own tranquility. Can we continue to allow our police departments to instigate violence against the very people they are sworn to serve and protect? Can we live in a society where unprovoked assault on journalists happen dozens of times in a single weekend?

Justice isn’t only about punishing wrongdoers. Justice is the active presence of equitable treatment. No state can be called just when extra-judicial killing is tolerated. We live in a society that provides military equipment to police while doctors are begging for masks.

None of this is new. The oppressed among us have lived this their whole lives. That many of us are only now getting mad is an indictment of us. The past cannot be changed, but we can act for a better future. A future where Black lives matter. A future where those who enforce the law are held accountable to it. A future that provides for the safety and well-being of everyone.