The Innocence Project

December 26, 2017

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.

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Is Culture the Solution to the Campaign Finance Problem?

August 2, 2016

This is the fifth in a series on Money in Politics.

Americans love prohibitions rather than investments. That’s tragic because prohibitions often work poorly while investments pay off.

Antipathy toward investments grew in the backlash to the Civil Rights Movement. Politicians used crime as a wedge issue and the riots facilitated their strategy. While liberals talked about the causes of crime, and the things we could do to deal with it, conservatives had no patience for what they called “coddling criminals.”[1]

In the 60s we still invested in prevention,[2] afterschool activities, and treatment. But the War on Drugs substituted a focus on condemnation and mass incarceration.[3] Prohibitions were in and expenditures became “waste.” We’re turning back now because we have discovered it is expensive to warehouse people.

Reagan generalized, telling America that “Government is the problem.” His attack was designed to end the War on Poverty that President Johnson inaugurated. The war on taxes was a way to kill otherwise popular programs.[4] Reagan’s successors were trapped by the effectiveness of his anti-government and anti-expenditure rhetoric. G.H.W. Bush, forced into assuring the American public that he would not raise taxes, told the public, “Read my lips: no new taxes.” Prevailing anti-expenditure sentiment forced President Clinton to reduce relatively successful federal programs. And George W. Bush, continued the same theme, telling the people repeatedly that you can use “your money” better.

Politicians are saddled with the curse of being part of a system of government the people came to despise. Revelations of the damage done by campaign funding deepened that feeling and curdled reactions to the one method of campaign funding that would not lead to more corruption – public funding of political campaigns. Public funding of presidential election campaigns, through small federal tax credits, came about partly in reaction to Watergate. But support for the program has declined steadily since.

Americans have not always been as hostile to government as they are now. Responsible and effective government were this country’s major contributions to civilization, coming out of the 1776-1783 revolutionary struggle and the birth of the Constitution in 1787. From the Eisenhower Administration, when people were first polled about confidence in government, and well into the 60s, three-quarters of the public trusted government most of the time. Only twenty-five percent of the public do now.

But now, Americans have decided that government and politicians are bad. People don’t want to give politicians anything – except for funding police and the armed services. Making public funding possible is intertwined with these larger questions of whether government can be trusted with anything. President Obama and Secretary Clinton have been talking about smart investment. The public has little patience for failure, even though success, public or private, usually follows failed experiments.  So the future of public funding is linked to changing attitudes about government, politicians and the possibility that they can make smart investments. Many things could be done better, and ultimately more cheaply, if we were willing to invest.

— This commentary was broadcast on WAMC Northeast Report, August 2, 2016.

[1] On wedge issues, see Christine Watkins, Gun Control: The Debate and Public Policy, quoting Eric Zorn, “Librarians Take a Risky Stand on Full Access to the Web,” Chicago Tribune (June 5, 1997).  On changed attitudes, see Michael J. Robinson,  Television and American politics: 1956-1976, Public Interest, Number 48, 3-39 (Summer 1977).

[2] See Nat’l Comm. on the Causes and Prevention of Violence, Final Report: To Establish Justice, to Insure Domestic Tranquility (1969).

[3] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).

[4] David Stockman, The Triumph of Politics: Why the Reagan Revolution Failed (1986).


Should we care about the fate of prisoners?

March 11, 2014

Should we care about the fate of prisoners?

A number of listeners have been raising that question in the wake of WAMC reports of lack of medical care in prisons, and my support for Cuomo’s position about educating prisoners.

Let’s assume that we don’t care about them at all. But we care about us. So what is the effect on us of what we do to them?

Actually the implications are huge. Read the rest of this entry »


Prisoners and the Price of Anger

February 25, 2014

People are angrily attacking Gov. Cuomo’s proposal to provide a college education for some prisoners in order to put them on a path toward more constructive, and law abiding, lives.

How much is anger worth? I understand the anger at funding an education for prisoners. They’re in prison because they have been adjudged guilty of a crime – some pretty minor but some pretty nasty.  Read the rest of this entry »


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