The Innocence Project

I want to talk about people we are less used to talking about around Christmas.

Several times a year I am guaranteed to have a good cry – whenever I get the latest bulletin from the Innocence Project. Without fail they describe at length someone who spent decades in prison, sometimes on death row, for crimes they did not commit. As a human being I am always heartbroken. As an American who believes that we all have a right to liberty, I am both sick and outraged.

And once freed, what education, training or experience do they have? Did they have a chance to start a family and are any left to warm their hearts? The dislocation of freedom is immense. I’ve met men in prison afraid to come out. Those lost decades freeze the soul as they scar past, present and future. Freedom is precious. It also unravels.

I am outraged because there are too many in this country, too many with the power, to keep people in prison, even execute them, even after it has become clear that they were innocent of the crimes for which they were convicted. Justice O’Connor, bless her heart, saw that as unacceptable, although we didn’t always agree on the facts. But the Supreme Court has not yet found the character or the will to conclude that it is unconstitutional to hold an innocent person once that becomes clear, or to sit tight and deny a hearing once evidence has been found that makes it improbable that the prisoner was guilty. The Court has refused to find a right to DNA evidence when that could prove innocence. And prosecutors repeatedly do everything they can to withhold evidence that could result in justice instead of in conviction. The Supreme Court has even said that there are no penalties for withholding evidence even when it is in clear violation of constitutional obligations.

As an American, it is an understatement to say that is no source of pride. As an attorney and a human being, it is a source of disgust – and fear. A legal process that ignores justice is a threat to us all. The purpose of the Bill of Rights and of the Fourteenth Amendment is to protect us all from the abuse of law to polish the prosecutor’s reputation or prejudices instead of serving the cause of justice. Unfortunately attorneys know that the criminal process is more like a canning factory than an effort to separate the innocent from the guilty, truth from lies, and fairness from abuse.

The ACLU and the CATO Institute, otherwise often on opposite sides, come together in support of truth and accurate decision-making. But when the issue is the rights of people accused of crime or the rights of people who have been imprisoned, too many eyes glaze over, not from tears but indifference. Yet those rights, if and when they are honored, are what differentiate us from a police state where people can be imprisoned because of their politics, their parentage or their refusal to kowtow to the unreasonable demands of authorities. These are part of the central meaning of being an American.

The people whose title is Justice of the United States Supreme Court who vote most consistently to protect the right to life of fetuses are the least likely to protect life in any other context. That is hypocrisy under black robes. The behavior of callous prosecutors and unqualified Supreme Court justices is an American disgrace.

— This commentary was broadcast on WAMC Northeast Report, December 26, 2017.

The Middle Class and the Poor

This is a season in which many of us make donations to help those with less than we do. But in the larger context, we need a better understanding of the poor.

For years now, politicians have been talking about the middle class. Being in the middle class doesn’t mean that one has it made. There are unfulfilled hopes and potential financial shocks that could knock almost any of us down and out. We know that and many of us are rightly concerned about it. The market has no feelings. It dispenses with people like so much trash. That should leave all of us concerned.

But when politicians talk about the middle class, I hear something else. I hear them telling us that no one else counts, especially not the poor. Many people treat the poor like trash. We even have names for it. A lawyer working for me once described his own family as poor white trash. He was nothing of the sort of course and his family couldn’t have been either – they brought up a very decent young man.

Tom Paxton wrote a song in which he says “If the poor don’t matter, then neither do I.” I had the pleasure of telling him after one of his concerts that song was very meaningful to me. I spent about ten years as a poverty lawyer in various positions in three different states. My clients weren’t trash and they did matter. They were decent, hardworking people who had suffered some reversal. Often, just as hard as the loss of income was the blow to their pride when they were out of work. The poor don’t have a financial cushion when things go bad. They can’t retire and rely on the pensions they don’t have. I remember working to get one of my clients who did have a right to a pension – it was thirty dollars a month.

With no money coming in, they spend most of their time trying to find things cheap enough to squeeze into their meager budgets. When people are poor, they are also very vulnerable not only to emergencies but also to fraud – they have little time or capacity to compare or investigate. Everything looks like an opportunity, even though too many offers are a mirage, squeezing out what little people have left.

We in the middle class are also linked to the poor because the worse they are treated, the worse we can be treated. That’s hardly a new observation. Free laborers in the pre-Civil War north objected to the way slavery lowered what they were paid for their labor. We are all affected by everyone’s wages. When the minimum wage goes up, so do lots of other peoples’ wages as well. When wages are set or negotiated it is always done with an eye to what other people are being paid.

The poor matter in another way. It’s very damaging to all of us to treat people like trash. Treat people like trash and train them to behave like it, and train ourselves to misbehave. George Mason spoke from experience when he told the Constitutional Convention that slavery made tyrants of the slaveholders. Civilization and civility require civilized behavior from all of us.

It’s also political. For all our fussing about corruption, Commonwealth United, respect for people of all backgrounds, and other issues of concern to those of us who feel like we are in more comfortable circumstances than the poor, who are our allies? And if we want allies, are we theirs?

Tom Paxton was right, if the poor don’t matter then neither do I.

— This commentary was broadcast on WAMC Northeast Report, December 19, 2017.

From Chaos to Monopoly – the End of Net-Neutrality

Those of us warning that American democracy is threatened have still been stunned by how fast. Political polarization elsewhere has led democracies to collapse. Polarization here has largely been the unintended consequence of a legal transformation. But the cure may be even worse.

Over the past half-century, legal changes fractured the media by helping cable television  and available broadcast channels expand. Before fake news became an industry, the fractured media promised us a more democratic marketplace of ideas. But it made us a fractured audience, no longer watching or hearing the same news.

Court decisions eliminated liability for innocent misstatements that defamed people. The fairness doctrine once required all broadcasters to provide balanced coverage of controversial issues of public import. It was dismantled in the 70s. Now TV and radio are much more one-sided. A new statute and court decisions gave internet providers immunity even for fake news. The internet rapidly became both the intended source of valuable views and information, and the unintended bastion of garbage, leaving readers, viewers and listeners much less well-informed about the competing arguments over public issues.

Meanwhile, courts and state legislatures put presidential primary elections firmly in control of the nominating system.  Primaries often drive candidates to the extremes to capture majorities of their own parties, not toward the center to capture independent voters. Instead of balancing each other, therefore, the media and nominating systems increasingly radicalized each other since the 1970s.

President Theodore Roosevelt once said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.” The draft ended in the 70s, a casualty of our disagreement about the war in Vietnam. The public schools have been hollowed out by charter schools and re-segregated with the help of suburbanization, zoning and Supreme Court decisions after Rehnquist took its helm in 1986. So neither schools nor the draft bring us together as they once did.

Federal agencies were at the heart of segregating the suburbs before and even after Brown v. Board, deepening polarization in the process. Financial institutions only compounded the damage with their sub-prime loans.

In this polarized, divided, segregated era, the Court in Washington decided the nation’s most contentious issues of race, police behavior, school prayer, abortion, equal rights for women and people with differing sexual orientations.  These were mighty battles over justice with enormous consequences. Mildred and Richard Loving could marry and live as a devoted couple near their relatives in Virginia despite their difference in racial origin.  Similar opportunities opened for women, African-Americans and members of the LGBTQ community. Some went free who would have been hanged for crimes they did not commit.

But the Court’s decisions sharpened the polarization among us. Where now can we hold a “national conversation”? In a fractured media? In a primary system designed to favor extremists? In the military tent? Or walking our kids to school? We have, unintentionally, torn the fabric of our community. Still we could rewrite some of the rules that aggravated our polarization.

But on Thursday, the Federal Communications Commission wants to eliminate net-neutrality and give a few large corporations control over what we see and hear. I’m concerned by which friends of FCC Chairman Ajit Pai would get control over our news sources. We’re going from chaos to monopoly. With Trump leading the charge against the most careful and professional news sources, it feels like we are headed to autocracy and bye-bye democracy.

— This commentary was broadcast on WAMC Northeast Report, December 12, 2017.

Equal Rights Could Be Better Served

I think Al Franken made a mistake – actually lots of mistakes but let’s add one more: he should have stayed in the Senate and joined the Republican Party. Franken was a comedian and some will laugh or smirk at that comment. But Trump and his “base” and many in their party have no problem with male chauvinist behavior; indeed they flaunt it and they’re still fighting against everything the Equal Rights Amendment tried to accomplish. Both personal and policy failings are bad, but the combination is worse especially in the case of public officials. The fact that Republicans have both policy as well as personal failings with sexual abuse and harassment is a double failure; it’s a mistake to conflate all gender and sexual error as if there is no difference and as if fewer equals more.

Too much is happening at once. But here’s another – John Lewis and the other venerable civil rights leaders who protested Trump’s appearance at the opening of the Mississippi Civil Rights Museum made a mistake. At what other time would they have had a chance to lambast Trump in front of a national audience, and, more important, Trump’s “base”? I haven’t figured out a way to reach that group of people. Trump tried to hand it to them.

Sticking with the 2015 Joint Comprehensive Plan of Action, the Iran nuclear agreement

JOPAC was the multi-national 2015 Joint Comprehensive Plan of Action, known as the Iran nuclear agreement. I’m happy to say that I’ve never been closer to nuclear weapons than listening to my chemistry professor, himself part of the Manhattan Project that created the first A-bomb, talking about them. My cousin Mimi worked at the Oak Ridge National Laboratory but all she could tell me was that she was there. Happily she lived into her 90s. But I have had some experience in Iran.

I was teaching at Pahlavi University, now called something else. Someone was sent to oversee the University. We were all warned to stay away from him. He wasn’t trustworthy. But this brash yours truly thought he knew better so I called on him. He was an economist. I had an article about the difference between Iranian and Turkish economic success to show him. He was of course interested.

Suddenly no one would talk with me. Not a word. I finally cornered someone and insisted he tell me why. He accused me of having called all Iranians liars. I remembered that on the first page of the article, Harvard Prof. David McClelland, with whom I had corresponded, criticized vague and unscientific statements about Iran like “All Iranians are liars.” McClelland set out to study Iran much more precisely. The young man I had cornered had good enough English that he understood exactly what had happened. All of a sudden people talked to me again – as if nothing had ever happened.

Would it have been better if I’d followed orders? Probably but it didn’t hurt that I had exposed the distortion of what I had said. Just as clearly, lots of people there took truth seriously.

Iran is a negotiating culture. You negotiate over everything, from carpets to the seams in a coat you’re having made. When I was getting ready to leave, I sat down with a Persian friend to sell him some of my record collection. He assumed I wouldn’t negotiate but would name fixed prices. I assumed he would negotiate so I asked for more than I wanted. When I realized what had happened, I reverted and gave him the records for much less than we’d agreed. Neither of us wanted to take advantage of the other. But if he’d negotiated as expected, I would never have thought him a liar. It’s just about conforming to culture and how things are done.

The Peace Corps Iran Association, or PCIA, composed of people like myself who served over there, has taken the position that “the Iran nuclear agreement [was a] historic and … excellent example of the success of diplomacy to resolve a major, contentious issue that threatened regional and world peace. As has been certified by the International Atomic Energy Agency … tasked … in the agreement to monitor and verify Iran’s compliance … Iran is abiding by the agreement. United States security agencies have confirmed the IAEA assessment.”

PCIA “urges the United States and Iran, along with the other parties to the agreement, to continue to uphold and abide by the agreement and to take no action that would violate the agreement.” PCIA concluded that both the United States and Iran should keep their word. Incidentally, Ambassador John Limbert, who was one of the U.S. Embassy hostages held for a year and a half, instead of being filled with bitterness and reaching cavalier conclusions about the country, told us at a recent conference of former Peace Corps Volunteers who served there, that he too, urges that we stay the course.

— This commentary was broadcast on WAMC Northeast Report, December 5, 2017.