Sunday, November 30, 2014

Two Highly Recommended Readings

-- Posted by Neil H. Buchanan

I hope that all Dorf on Law readers have enjoyed the holiday break, and that at least some of us took seriously Professor Colb's moving call to allow our professed values to change the way we think about what we eat.

Although it is not our usual practice to publish Dorf on Law posts on weekends, I wanted to take just a moment to bring attention to two "must reads":

(1) Thomas Palley, a progressive economist (which is, despite all evidence to the contrary, not an oxymoron), has penned a satirical essay, "Economists Without Borders (Economistes Sans Frontieres)," which manages to be surprising in two important ways: (A) It uses the ebola virus as a leaping off point for humor, and (B) It shows that economists can be funny.

(2) In his post two days ago (which I also highly recommend, but which loyal readers will surely have already read), Professor Dorf briefly mentions a guest Verdict column by Cornell Law Visiting Professor Joseph Margulies: "Lessons From Ferguson."  I cannot emphasize strongly enough how great this column is.  I dare say that it will make you think about criminal justice in new ways.  It is almost poetic.

Now you know.


David Ricardo said...

Columns like the Margulies one cited by Mr. Buchanan and Mr. Dorf are slowly educating Americans that this nation does not have the justice system that we think we have, that is shown in popular culture and that provides justice for all. Consider the following that takes place daily in America

1. Individuals are brought to trial in capital offenses without benefit of competent counsel. The Supreme Court says that ignorant defendants are responsible for the errors of their attorneys even though they have no knowledge or control over those attorneys. We actually execute people because their attorney did not file papers on time!

2. The accused but untried and un-convicted are often incarcerated for months in jails because they cannot afford bail.

3. Prosecutors ‘bribe’ witnesses who are themselves accused with promises of lenient treatment if they will testify against other defendants. This information is often denied defendants at trial.

4. Evidence is lost, mishandled, denied to defendants. Think about the backlog of testing of rape kits.

5. Privately operated prisons lobby state governments to increase sentences because they, the private prisons benefit from a higher prison population.

6. Property, including money, autos, jewelry etc is taken from citizens simply because the authorities believe they may have been used in a crime or believe they may be the fruit of a crime. This is done without any charges being filed, without any due process, or process at all and the victims of this state crime are without recourse. Local police are funded by these actions.

7. Poor, ignorant and/or mentally ill accused are interrogated without counsel for hours and threatened with long prison sentences unless they confess and plea bargain to a crime they may or may not have committed.

If this sounds like a Soviet era justice system or the type of justice system that exists in corrupt dictatorial nations it is because it is. With respect to justice, the American Dream is just that, a dream. Reality is a Kafka-esque nightmare.

pvine said...

Margulies's pinning the death of Michael Brown exclusively on what he describes as an "us" versus "them" mentality that, according to him, is at the core of America's criminal justice system is myopic.

Margulies's anti-government, anti-establishment, narrow-minded rhetoric does nothing to prevent another killing of an unarmed Black youth at the hands of a White police officer.

The issues that led to Michael Brown's death, and will inevitably lead to the tragic death (or imprisonment) of Black youth in the future are far more complex than the Margulies "us" vs. "them" theorem.

Margulies may want to analyze the deterioration of the Black family structure over the last 50 or so years and determine whether an "us" vs. "them" mentality caused that dysfunctionality. Or whether there was something else more basic, more connected to personal responsibility, at play?

Anonymous said...

I am surprised to find myself in agreement with pvine and disappointed in Neil. The essay by Professor Joseph Margulies was indeed myopic, missed many of the real issues that plague the criminal justice system, and ignores the political reality in the country today.

Margulies is correct to point out that much criminal justice reform has focused on sentencing reform rather than police and prosecutor reform. That is indeed true and indeed a problem. Yet the changes in prosecutor and police practices since the 1960s have nothing to do with an "us vs them" mentality. It has everything to do with a shift away from legislative authority to executive authority, a shift whose momentum continues to build. This shift has happened because there has been a huge increase is social complexity, partially as a result of technological and economic progress but partially as a result of the increase in social diversity on both a national and global scale. These rapid and complex changes have required rapid and complex responses from government. With limited time and resources it been far easier for legislatures to pawn off the difficult work to government bureaucracies overseen by the executive branch. In short, one cannot separate out prosecutor and police practices--such as the vast increase in plea bargaining--from the overall rise in the administrative state--they are part of the same trend.

Where Margulies wanders off track is that he confuses the focus of police power with the origin of police power. In is true that at certain places and in certain situations that police have used their power both to increase rather than decrease racial divides and that there is sometimes an us vs them mechanic in play. But that is correctly seen for what it is: an abuse. That wasn't the underlying social justification for giving the executive increased power. The problem with Margulies's "Kumbaya" approach is that it only addresses one head of the hydra and makes no attempt to attack the body. I don't dispute that there is or has been a "punitive trend" in American life but poetic bromides are at best temporary bandages--so long as the executive has so much asymmetrical power people will continue to be attracted to that power precisely so they can use it for punitive purposes--if not blacks, gays; if not gays, pedophiles; if not pedophiles, whatever next group the social norm decides to make out cast.

We are now in the throes of what I have come to call "gangster government," where the real desire of political parities is not social unity but a fight over who controls the Executive gang. Naturally, people like Margulies (and it appears Neil too) think that when they control the gang that polices and prosecutes the people they have achieved social unity. That is an illusion. Genuine social unity begins with a restoration of the proper power balance between the policy makers and the executors of that policy, for it is the policy makers--the legislatures--who can truly claim the will of the people: never the executive. However, for reasons great and small the restoration of said power balance will likely have to wait end of the American experiment in democracy.