America Law vs. American Justice

Many years ago at a party when I first moved to New York City after college, a freshly minted lawyer shared with me a joke that all of his colleagues told about their powerful Park Avenue law firm:

Why are the senior partners so supportive of our pro bono work?  They want us to practice on some poor jerks life and liberty in order to be certain that we can be trusted with the property of our rich clients!


This exquisitely cruel joke amply illustrates a tension that has haunted our high ideals since our nations founding: How do we ensure that each American receives an equal measure of justice?

It has, we all know, often been the case that those with wealth and connections receive preferential treatment from our supposedly impartial system of justice, and laws many times have been written to explicitly protect the interests of the haveswhile harshly punishing the have nots.  To take an extreme instance from our nations deeply conflicted history, the Fugitive Slave Act of 1850 required that the government do whatever was necessary to help frustrated slave owners regain their runaway property and so quash that slaves strongand, from the slave owners perspective, incredibly inconvenientdesire for life and liberty.  This was all, of course, perfectly legal, but it was morally and ethically wrong to a degree that strains the credulity of our minds today.

The obvious and well-worn political answer to the problem of injustice under the law has been to gradually codify more legal protections for those with limited means or who live outside societys mainstream; the right to free legal counsel and expanded rights of appeal have certainly been an immeasurable help to many who in the past would have been railroaded by a legal system more concerned with expedience than actual justice under the law.  In addition, the power of crusading newspapersand later radio and televisionto highlight instances of justice denied or deferred have provided a very public check on abuses that might have previously gone unnoticed.  This scrutiny of the legal justice system has, of course, reached a new and startling apogee in the age of the Internet and social media, which now facilitates a degree of worldwide scrutiny that forces many rich and powerful malefactors to squirm uncomfortably under the unrelenting gaze of hashtag activism.

Nonetheless, the United States is still wrestling with the reality of continued injustice, which is sadbut unsurprising.  Any expectation of perfectjustice from fundamentally imperfect human beings is both naive and plain silly.  Human judgment, human perception, and human memory are inherently unreliable, so mistakes will be made.  

The real question is just how quickly and effectively we can address those miscarriages of justice that will inevitably occur.  Wrongful convictions that are finally overturned after decades of incarceration seem resoundingly hollow victories, so we need to streamline our processes for appeals.  Moreover, in order to catch problems before they happen, we also need to re-examine our courtroom evidentiary rules; oddball and capricious judicial decisions about what evidence to introduce or suppress at a trial too often defy any reasonable standards of fairness or common sense.

We have, however, veered into an entirely new legal territory over the last decade or so.

Extraordinary efforts now being made to facilitate the re-entry of criminals into mainstream society.  This has produced a novel three-pronged strategydecriminalizing that which was once illegal, expunging more and more criminal records, and forbidding the use of criminal background checks in housing and employment decisionsthat raises many questions about what is justiceand what is not.  The logic seems to be that reducing what is considered criminal will lead to fewer crimes, and those who have previously committed crimes can be counted upon not to do it againif only the stigma attached to their past crimes can be somehow erasedbecause most crime is but an unfortunate artifact of a overly repressive and punitive society.

Legitimate concerns regarding whether removing consequences from behavior that is often anti-social and sometimes dangerous will only incentivize more wrongdoing are typically brushed aside by those who see criminals and criminal behavior as nothing other than the logical and reasonable reactions of those oppressed by a deeply unjust societyand legal system.  If, as The Rolling Stones once sang, Every cop is a criminal and all the sinners saints, it naturally follows that the boundary between the crooks and respectable citizens is both porous and arbitrary.  We are, therefore, encouraged to see those who break the law as simply unlucky individuals who are actually little different than those who are fortunate enough to live in more privileged circumstances that allow them to easily remain on the straight and narrow.

This is all, of course, a remarkable national experiment that neatly dovetails with both academic theories of systematically unequal societal and economic privilege and the intense desire of many in government to reduce the often steep costs of policing, courts, jails, and prisons.  Whether we will see the desired outcomesless crime, more social harmony, and a more egalitarian countryis still an open question, and acrimonious and unending debates regarding the collection and interpretation of crime data going forward will be as predictable as daffodils in the springtime.

Those who advocate on each side of the equationdemanding more rights for either the victims or the lawbreakerswill each have key roles to play in determining the ultimate political and cultural outcomes of this unique inquiry into both the possible redemption from human weakness and the true boundaries of human forgiveness.  Whether we will soon be celebrating a new era of community peace and respect or frantically polishing the rust off the bars at the old county jail will likely determine the social and cultural milieu of America for many decades to come.


A Birthday Wish For America

July 4th historically has provided the exclamation point of the summer.  The corn is knee high, the barbecue grills are ablaze, the day off from work is welcome, the parades are packed with marching bands and shiny fire trucks, the baseball is blessed, the public pools are packed with screeching children, and the evening fireworks are thrilling.  Perhaps no other day of the year is quite the the archetype of what it means to be an American.

However, our national mood seems increasingly sour and suspicious.  A Gallup Poll now finds that a record low percentage of Americans, a pitiful 45% overall (and only 22% of Democrats!), are extremely proudof Americaand only 32% are proud of the American political system.  Thankfully, 70% are still proud to be Americans, although this is in itself a sad when one considers that 30% of Americans obviously cannot bring themselves to express the same sentiment to a pollster.

Although the many personal and political freedoms that allow us to freely speak our minds are the envy of other nations, it is certain that lots Americans are completely fed up with our squabbling politicians acting just like a bunch of squabbling politicians.  The constant adolescent feuding and fighting instead of making an adult effort to find common sense compromises is a boon to cable television shouting matches and the most partisan people posting on social media, but many Americans are sick and tired of one group of hyper-partisan Americans attacking other hyper-partisan Americansand hurting all Americans in the process.  

Criticizing is easy and provides one with a sense of clear moral superiority while doing so; finding solutions that require everyone to get off their high horses, roll up their sleeves, and engage with the messy complexities of life is what we need today.  

This will, on occasion require acknowledging unpleasantand occasionally irreconcilabletruths that are lost when one has the luxury of only dealing in moral absolutes: some illegal immigrants are criminals, late term abortions are repugnant, many young Americans are being raised poorly, our educational systems are crazy expensive and often just plain crazy, and bad personal choices tend to result in lousy life outcomes.  However, it must also be recognized that some illegal immigrants are fleeing certain death, access to first trimester abortion is a necessity, many parents are doing a great job against sometimes impossible odds, education is a core responsibility that must be done responsibly, and even people who make bad choices are sometimes deserving of a second chance.  The middle ground might be uncomfortable because extremists on both sides can easily snipe at you, but this is where the hard work of governingrather than grandstandingactually happens.

The first step in learning how to get along with our fellow Americans is, of course, to focus on disagreeing without being intolerably disagreeable. Any relationship where the least little problem is a ready excuse for spewing outrageous insults and threats is bound to fail.  The manner in which Republicans and Democrats approach matters of public policy should not resemble the two parties in an abusive marriage. Only crazy people stick a fork in your eye if the lasagna is overdone, but this is pretty much the kind of hair-trigger overreaction that we hear twenty times a day from the supposedly responsible elected officials whom we have entrusted with the future of our nation.

Breathtakingly disdainful rhetoric and behavior that from the outset dismisses the idea there are two sides to every story results in playground politics that allow bullies, cowards, and tattletales to dominate the dysfunctional discourse and destroy any hope for a reasonable resolution.  Given the gravity of the problems and questions facing us today, we need to rediscover the charmand purposeof conversation that communicates without wounding.  As much fun as sneer and snark might be fun for some, it forbids any but the most foolhardy or masochistic from participation in public life.

Therefore, my birthday wish for our nation is a simple one that might be damnably hard to achieve: a commitment to civility of language, moderation of thought, and charityof both heart and mind.  To continue as we are todayfists up and minds closedwill only continue the catastrophe of anger and gridlock paralyzingly our nation.

Take a deep breath, America.  Prepare to listen and learn from one another.  Have a beer.  And keep in mind were all in the same boattogether.

How Do We Make America More “Fair” For All?

Two stories recently in the newsproposals to pay reparations to Black Americans to compensate for the legacy of slavery and the SATs new adversity scorethat is meant to quantify the unique personal challenges faced by some college applicantsspeak to our nations desire to lend a helping hand to those who have suffered through no fault of their own.  We have traditionally distinguished between those whom we deem complicit in creating their own problems and those whom we believe are innocent victims of circumstances beyond their control.  This dichotomy explains why, for example, Americans are typically far more sympathetic to the plight of undocumented Dreamerswho were snuck into the U.S. by their parents as children compared to our often more punitive attitudes toward adults detained for illegal entrywe perceive that adults have choices but children have none.

The quest for equity both drives and complicates our political discussions today.  The desire of many to promote policies that encourage diversity in many facets of our public lifeparticularly in education and employmentis born of the belief that discrimination and its resulting inequities must be remedied through the direct intervention of affirmative action programs.  These policies, however, often collide headlong with our other commitment to meritocracythe belief that it is the most fair that positions or promotions go to the most talented or most qualifiedbecause some believe these meritocratic systems are reinforcing historic wrongs by penalizing individuals whose ancestors were denied advantages that more privileged groups now take for granted.  

It could be reasonably argued that a great deal of the stark political divide in America today revolves around vastly differing ideas regarding who is actually victimized by the non-meritocratic systems now often used to create a more fair society.  Those who are favored by affirmative action policies see it as a case of justice deferred being finally set right; those who feel college admissions or jobs are being handed to someone with fewer qualifications than them believe that their hard work is being ignored in pursuit of someone elses social justice goals, which are denying them opportunitiesor ruining their lives.  

The old joke that a conservative is a liberal who has been muggedmight actually be more accurate today if it stated that many conservatives are formerly liberal (or politically moderate) individuals who believe affirmative action policies have harmed them or their families.  I suspect that the shock of the 2016 Presidential election might be less surprising if we paid more attention to this perhaps pervasive factor, which is less indicative of systemic racism or sexism and more about an individual frustration with remedies that seem abundantly unfair to those caught on the wrong end of societys great solution to all that ails or divides us.

Our individual supportor lack of itfor affirmative action programs, reparations, or other programs and ideas designed to enforce fairnessare often directly related to our own beliefs about the current prevalence of racism, sexism, homophobia, and other attitudes that lead to discriminatory attitudes or behaviors.  Having no direct and reliable method to measure what is going on in everyone’s minds at each particular moment, we seem to have taken a better safe than sorryapproach in many educational and workplace situations, presuming that everyone has some level of hatred or disdain in their hearts and heads, which accounts for the popularity of workshops and training that are meant to promote greater sensitivity and tolerance toward all.  The obvious added benefit of teaching everyone how to be polite and sensitive is, in the minds of managers mandating more and more of this type of activity, the implied promise of avoiding the legal or regulatory actions that might result if everyone at your school or workplace has not signed a form confirming they have been explicitly informed that acting like a jerk is strictly forbiddennever underestimate the power of lawyers who crave a big payday when it comes to shaping our daily lives.

Those who look at the diversity of our political, cultural, and entertainment icons and see a cross-section that captures the amazing richness of our nationcombined with the election (and re-election) of Barack Obama to our nations highest officefeel that this is clear evidence our country has left its history of overtly hateful behaviors and laws far behind us.  Others, however, point to the election of Donald Trump and his administrations apparent lack of interest in pursuing affirmative action policies as equally persuasive proof of a white backlash that aims to quash the aspirations of many by reasserting discriminatory policies disguised as meritocracy.

All these discussions become even more fraught when matters pertaining to the use of standardized testing for school or college admissions are added to the discussion.  Many believe that evidence-based studies prove that these tests are either themselves discriminatory or actually act as proxies for measuring outcomes, such as family wealth and the resulting ability to afford pricey test prepcourses, that are nothing more than artifacts of historic discrimination.  Therefore, the continued use of these tests to determine admissions might perpetuate inequities and deny diversity.  

On the other hand, others point to the predictive value of these standardized tests regarding long-term academic and career success.  In addition, they believe that quota systems meant to circumvent themwhich in some cases have reduced the number of seats available to Asian-American students in order to admit Blacks and Latinos who scored lowerare a perverse and damaging rejection of the color-blind meritocracy these tests purport to promote.  

The resolution of the many lawsuits regarding these matters will likely only further inflame tensions regarding whether reliance upon standardized tests in admissions decisions is fairor not.  In addition, we have no assurance that the best efforts of schools and colleges to mitigate the effects of the many factors that impact academic readiness or success will not result in other types of subtle discrimination if human judgments and intuitions, which are sometimes flawed or easily manipulated, suddenly become the ultimate factor in determining admissions.  

Moreover, we have to worry whether ditching these standardized tests will ultimately result in the return of the old boy networkof personal connections in admissions decisions, which is exactly what the use of these tests was designed to end.  Will seats at the best schools end up going to children whose parents know how to twist the system and, sadly enough, return us to an incredibly unfair reality that at one time allowed those with wealth and power to readily and regularly perpetuate their advantages across generations by subtlyand often invisiblyusing their influence to open doors for their own children?

It is good that we have these conversations.  Our nations ongoing commitment to justice is a feature of our nation that we should celebrate at every turn, and the passions that inform these discussions are a tribute to the continued vibrancy of our civic culture.  The debate regarding the form, function, and outcomes of traditional meritocratic systems of placement and promotion has become a mirror reflecting a broader societal evaluation of our nations progressor perhaps lack thereofin creating a nation that is more welcoming toward all.  

How we parcel out seats at selective colleges and universities, whom we choose to govern us, what factors we feel are important in evaluating employee talent and performanceand ultimately how we choose to define ourselves and our communitieswill be that which will determine the direction of our diverse, fascinating, and argumentative country in the years and decades ahead.  Although the discussions of these issues often feature the worst insults and stereotypes being tossed about by some, we need to continue to pursue an evaluation of these questions and encourage thoughtful consideration of the moral and ethical matters that are inevitably raised as we proceed.

House Of Lies

As odd as the thought might be, our daily lives are built around that which is unreal.  

We voraciously consume movies, television shows, books, magazines, and web-based content that is either entirely fictional or based on a true story, which means they are basically fictional.  The advertising we see and hear is hawking products and services claimingoften with the most specious of evidencethat we can be happier, thinner, more successful, more secure, smarter, sexier, or more popular for a seemingly modest purchase price.  Memoirists routinely shade the truth to present themselves in the best possible light.  Celebrities dazzle us with the assistance of armies of trainers, assistants, accountants, managers, and handlers who help ensure that their lovely lives seem effortless.  Even the supposed realityshows that we obsessively watch are carefully scripted and edited to provide enough faux controversy and fake drama to keep us tuned in for the next episode of someone elses exciting, miserable, or unbelievably screwed up life.

We search for truth where we can, but a great deal of the information made available to us has already been packaged in order to present a version of reality that is most easily sold to a particular target audience.  That which is carefully omitted or selectively presented often conceals a non-preferred truth, which helps with the task of manipulating our emotions, shaping our attitudes, and controlling our actions.

Choose any bit of news or information, and it is easy to see how editorial choices are crafted to elicit the desired response.  On one news feed I read about adult illegal alienscommitting heinous crimes; on another I read about adorable and innocent immigrantchildren hoping for better lives in America.  One moment I read of heroic women asserting sovereignty over their own bodies by choosing to have an abortion; five minutes later I learn of the intense pain a fetus feels as it is sucked from a womans womb. One expertassures us that we can have all of our needs taken care offor freeby taxing the super rich until they squeal; another is equally certain that this is mathematically impossible.  Truthis, as we typically learn as we get older, often dependent on who is doing the tellingand why.  Only the young or the hopelessly daft are foolish enough to abandon the cynicism that allows us to survive the mounds of mendacity (Yes, Im trying to use polite language here) that we now need to stomp through every day of our lives.

Truth is out there, but it can be unpleasant, unpalatable, and unsatisfactory.  Hence, we often choose to believe a version of reality that is less likely to cause us to squirm, or we simply ignore the messiness of the world around us altogether.  One of the reasons that our politics have slid toward the extremeswith political moderates ever more difficult to findis that practicality is predicated on some necessary incredulity.  Continued exposure to those who regularly deal in snake oil and bizarre fantasy tends to hollow out the sensible middle if we fail to leaven our naive faith with some clearheaded common sense.

We sometimes need lies to ease our many human fears, and sadly enough we are now cursed with a crop of political leaders who are happy to win our votes by cooing comforting nonsense.  To tell the truththat we cannot be offered protection from all of the worlds pain, despair, and injusticeis electoral suicide, so we are continually assured that with more laws, regulations, government programs, bureaucrats, mandates, tax increases, safe spaces, security cameras, oversight committees, bans, speech codes, censorship, permits, licenses, web policing, and fees we can eventually be cocooned in bliss.  Are we happy yet?

Those who are now proposing the next step, the use of Artificial Intelligence and computer algorithms to evaluate everyone in order to identify people who might (might!) someday pose a threat to others, are themselves terrifying; these individuals and organizations seem to be suggesting that life in an omnipresent, omniscientbut certainly not infalliblepolice state would be the most wonderful of all possible worlds.  That these ideas are considered credible and within reason seems to indicate that the domestic debate regarding delicate balance between freedom and security could be settled in a manner more Soviet than American.

Politics is, of course, theaterbut it should not be a theater of the absurd.  The lack of reality in so many of our national discussions, encouraged by feckless politicians and cheerleading media and celebrities, has led to policy impasses that forbid compromise due to an utter lack of consideration of costs and consequences by all involved.

The lies each side is able to tell because facts can now be treated as mere annoyances leaves our nation with no path forward, no hope for practicable solutions, and no ability for many to consider viewpoints other than their own.  Therefore, all we have left are the politics of personal destruction, which leads to endless attack and counterattack.  To assert this will lead to anything other than a hell of our own creation is the worst lie of all.

The Problem Of Right And Wrong

A signal feature of civilization is the eternaland eternally frustratingquest to distinguish right from wrong.  Standards of behavior have changed dramatically over time, and our search for moral clarity has led humanity in many different directions. Guidelines for a good life have come from many religions, cults, monarchs, autocrats, academics, poets, entertainers, politicians, authors, and relatively ordinary individualseach offering their own visions for organizing our governmental, social, and individual lives.  What all have in common is that they have tapped into our deeply felt human desire to embrace principles that elevate our intentions and actions above those whom we deem our enemies or inferiors.

Moreover, we have always needed those to whom we look for moral or ethical leadership to possessor at least be able to plausibly fakea purity of individual character that can inspire us to follow their example and teachings.  The truth of the matter is almost beside the point.  John F. Kennedy may have spent his adult life running around with his zipper hanging open, but he spoke well, dressed sharply, and could pilot a sailboat with his photogenic family smiling by his side.  

It obviously helped JFK that the press was happily complicit in hiding his peccadilloes from public view, but their willingness to do so was a function of their starry-eyed admiration for his easy charm.  He seemed to fit their vision of what a moral and inspiring leader should be, so they were content to engage in some willful blindness in the pursuit of what they perceived to be a greater good.  Those on the inside will always shield a personally compromised leader if they believe his or her purpose is pureand their own power and prerogatives are protected in the bargain.

Finally, it is beneficial to have the right enemies if you are to offer compelling moral leadership to the masses.  Having a great and good vision is important, but it is much easier for your followers or potential followers to offer their support if you can offer an apocalyptic alternative that will occur if your teachings are not followed.  Many centuries ago the Catholic Church was able to exercise domination over Europe because failure to obey meant Satan would arise and your immortal soul would be damned to hell fire for eternity.  Today the conviction that the Earth will spiral into unthinkable environmental catastrophe in only 12 years if draconian measures are not immediately taken to remake our daily lives and entire economic structure is driving the fervor of some for eating insects, living in yurts, and using composting toiletsthe enemy is our species and its crimes against our planet.

The obvious problem with seeking guidance and leadership in the quest for moral clarity is that heroes are not always clearly heroic and villains sometimes not overtly villainous.  It would be helpful if the enemies of humanity were legally required to live in secret lairs inside active volcanoes (evil assistant optional) or daily dress in black leather embossed with swastikas, but we have learned the hard way that truly terrible people can be superficially quite charming and engaging.  Conversely, some of the most heroic people in our history have been bland, awkward, or confrontational.  

Worse yet, it is extraordinarily difficult (if not impossible) to know for certain whether a given individual or action will in the long term serve the interests of good, evilor perhaps both.  For example, the scientists who created the atom bomb toward the end of World War II helped to end the actual combat more quickly; however, it was also the case that hundreds of thousands of people died horribly as a result and a nightmarish era of nuclear anxiety and paranoia warped world politics for many decades to come.  Were these scientists heroes, villains, or dupes?  We are still arguing the point, and the final answer eludes us to this very day.  Right and wrong are often maddeningly complex concepts with innumerable twists and turns.

Nonetheless, we are surprisingly comfortable with condemning the beliefs and actions of others with sometimes startling viciousness, and our inability to recognize the limitations inherent in our perspectives is an impediment to productive dialogue.  In addition, our predilection for rhetorical overkill and fallacious linkagesI just today read of a Presidential candidate equating being pro-life with racism and anti-Semitismrenders all involved less heroic despite their intense beliefs in the merits of their causes or ideas.

Although we have spent the past several decades insisting that our feelings are more important than hard, verifiable facts, relegating our emotions to the margins of our conversations might be the only way out of the quandary we find ourselves in today.  It would, of course, be foolish to forget that facts can be readily manipulated and twisted by those with a partisan purpose, but cool-headed inquiry based on data is less fraught with difficulties than determining who is the most angry, offended, or appalled by a given proposal or viewpoint.  

Some are now convinced that logic is an oppressive tool of patriarchy and racism (Dont believe me? Look it up!).  However, it could be reasonably argued screeching at one another until our eardrums burst is an oppressively stupid method of resolving our disagreements that leads only to unending discord and misery.  

Numbers are not hateful.  Although some would certainly disagree, your bathroom scale is not discriminating against you when you check your weight in the morning. Standardized test scores might be influenced by a familys social-economic status, but that is not a reason for discontinuing the use them as one basic measure of K-12 academic outcomes.  Our spiraling national debt has many causes, but it cannot simply be dismissed as an irrelevant annoyance when contemplating governmental programs that will cost tens of trillions of dollars.

Determining whoand whatis right is never simple.  It is possible to believe with all your heart and soul in an individual or idea and still end up being in the wrong.  However, arguing by attacking and government by grievance are the dead end roads of representative democracy.  Unless we change our style and methods of discussion and resolution very soon, it is all too easy to imagine an America that is irretrievably Balkanized by passion divorced from reasona dystopia born of our self-righteous rage.