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!

Ha-ha-ha.

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.

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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.

The Perils Of Perfectionism

The history of humanity has been the history of the elusive quest for perfection.

This has been a great benefit to us in many ways.  Our tinkering with technology has vastly improved our lives by driving the development of machinery and devices that have taken us from standing agog at the sight of a fire to a blasé use of computing technology that is very close to magical.  Our desire to perfect business systems and industrial processes has led to greater productivity and cost savings.  Our wish to make a perfect meal, plan a perfect birthday party, or find the perfect gift provides a great deal of happiness to many and is a natural outgrowth of our love and friendship with one another.

However, the search for perfection has its dark side as well.  It can lead to obsession or cause unbearable and avoidable tensions in the home or workplace.  A dangerous rigidity of thought or purpose can result if the desire for perfection is not balanced by alternative viewpoints or common sense perspectives, and the search for perfection can cause some to fanatically embrace imperfect methods that cause great harm others in the process.  Perfection is a laudable goal, but we should recognize that humans are inherently imperfect and must sometimes be forgiven for words or deeds resulting from a lack of foresight, expertise, or experience rather than neglect, stupidity, or malice.

There is an old adage that perhaps also illustrates a problem that occurs with those who believe wholeheartedly in their own interpretation of what would constitute perfection: If the only tool you have is a hammer, every problem looks like a nail.”  The belief in our own infallibility causes us to sometimes hammer away at those who disagree when we should instead be listening carefully to why their ideas differ from our own.  

This maladaptive tendency to insist that we are right when we should instead be learning why we might be wrong causes an unsurprising amount of conflict, and this explains at least part of the reason why so many necessary discussions descend into a nonproductive exchange of insults.  If we and our beliefs are perfect, those who believe differently are imperfectwithout a doubt.  The end result is arguments between parties that can never end in a resolution because for each only their own perfectoutcome is acceptable.  This my way or the highwaymindset, which by definition excludes any possibility of compromise, creates a great deal of the nightmarish gridlock that infects our governmental processes today.

This mindset is also, unfortunately, leading to a revisiting of history that focuses on flaws in human character and behaviorwhich are always easy to find with the least little effort. Every one of the heroes of history had their heaping share of human foibles, and rapidly changing social, cultural, and legal norms leave individuals and accomplishments from our past exposed to revisionist interpretations that strip them of their former glory.  

Is it appropriate to judge a 18th century historical figure such as George Washington or Thomas Jefferson by 21st century standards?  Are the pyramids not as wondrous because they were built by a conquering empire?  Was the fire that recently consumed Notre-Dame cathedral in Paris any less tragic because Christians have in the past forcibly converted or murdered those who did not share their faith?  Should we tear down all monuments to Martin Luther King Jr. because his less-than-welcoming views on homosexuality would now be considered hateful?

Human history is flawed because the humans who made it are flawed.  The desire of some to censure our celebrations of any historical figure or event that exhibits imperfectionsall of which we can easily spot with the benefit of 20/20 hindsightwill eventually leave us adrift in a world where we have no heroes or heroic acts.  Only miserable gradations of villains and villainy will remain as the heritage upon we must build our future.  

As bad as the past was on occasion, the actions, beliefs, and values of our ancestors bequeathed us the world in which we live today, and we should continue to recognize their mistakes and build upon their successes.  The many imperfections of the past can inform our judgments today, but we still need to recognizeand honorthe aspirations and achievements of those imperfect people.  The men and women who built our world were sometimes brutal, duplicitous, and unfairbut the best among them tried to rise above their own imperfections.  

It is both petty and shortsighted to castigate those who tried their best by focusing exclusively upon the worst that they did, and we need to remember that the most perfect of all human abilities is our capacity to forgive the flaws of others.  Tearing down the past is not the path we need to take as we too strive to rise above our human imperfections and create a better future for ourselves and the many generations to come.

The Blame Game

Roughly a decade ago, I found myself trying to answer a surprising question from a classroom full of my foreign students: Why do ladders in the U.S. have warnings plastered all over them informing users it is possible to fall off? They were honestly befuddled. Don’t Americans, they asked in their innocence, know that already?

I tried to explain the in-and-outs of product liability laws in our nation, but most simply shook their heads. It all just seemed very silly to them.

I am sitting next to a big yellow warning label right now on my bus ride to work: “Caution—Please Hold On While The Bus Is In Motion. Always Be Prepared For Sudden Stops.” This does not seem like unreasonable advice. I have seen passengers stumble and fall because of an unexpected lurch. One should always expect the unexpected. Our lives are full of “sudden stops”.

I spend a fair amount of my work day as a teacher doling out warnings, which I hope sound like sage professorial advice. “Don’t skip class. Don’t do your work at the last minute. Don’t trust Spellcheck. Don’t take zeros by failing to complete your assignments. Don’t just sit there if you have a question. Don’t. Don’t. Don’t.

My father filled my formative years with his own singular, all-purpose parental advice: “Don’t be stupid.” This wisdom had the benefit of both pithiness and infinite expandability, and it has served me well throughout my life thus far. I have, nonetheless, still engaged in a fair amount of my very own stupidity—both accidental and deliberate—but I have tried my best to keep this to a manageable minimum.

As much as we might like to believe we can simply avoid problem situations or problem people, the sad fact of the matter is that both are unavoidable at times. In fact, one of the key—and most troublesome—issues that we continually face when it comes to developing and tweaking our social welfare policies is simply deciding to what extent individuals should be asked to bear the consequences of ignoring reasonable warnings of harm. Did your own carelessness or stupidity cause you to land right smack on your face—and should taxpayers bear the responsibility for picking you back up again?

If, for example, someone abuses drugs or alcohol, should taxpayers be asked to bear the cost of a liver transplant? If this individual persists in self-destructive behavior and causes yet more damage to their new liver, does society owe that person yet more expensive—and likely futile—medical treatments?

If someone who is receiving housing assistance is evicted for causing a nuisance or damaging their rental property, should taxpayers be responsible for finding that person or family yet another suitable shelter?

If a teenager decides to skip high school classes and so fails to learn how to read or write well enough to secure gainful employment, who should be responsible for paying for the Adult Education classes that will obviously be necessary later in life to remediate that person’s deficient academic skills?

Every life problem begs a question of personal culpability.

If we deem that a “second chance” is indeed reasonable to offer to those who find themselves in certain difficulties for which we feel they are blameless, do we also by default owe them third, fourth, and fifth chances as well if the same problems reoccur? When does compassion end and enabling begin? Is it possible that in some situations our innate human impulse to be kindhearted is actually destructive to others because we are rewarding irresponsibility and discouraging the development of independence or problem-solving skills?

I hate to write a long string of questions, but these are issues we still struggle to answer as a country, and the many debates that scorch our national dialogue at the present time often boil down to ones of how to best assist those who are unable—or perhaps unwilling—to help themselves. As these questions often hinge upon the failures of other governmental programs—perhaps public schools that failed to educate or family services that failed to keep the family together—the answers are rarely straightforward or simple. Problems caused by governmental inefficiency or neglect in the past many times turn into even worse problems today—so what should we do now? How can we right these wrongs, and how much time, money, and effort is reasonable? Yet more questions we must struggle to answer.

Some problems cannot be prevented, yet we still expect everyone to exercise good judgment and live with the consequences of the stupidity or carelessness that the average person would know to avoid. My foreign students found warning labels on ladders to be inexplicable and ridiculous—if you fall off, it is your own fault. If I stand up during my bus ride home later today, I will have no one to blame but myself if I fail to hold on to a strap and do a face plant when we round the corner.

Whether we decide that individuals should pay more heed to warnings or—as some suggest—our entire nation needs a warning label slapped on it due to its dysfunctions is one we have yet to adequately answer in many instances. Should we decide that foolish or deceitful individuals are causing society’s problems, that drives one set of solutions. If, however, one assumes that a discriminatory and cruel society is the root cause of the problems suffered by individuals, that pushes the discussion in a wholly different direction and alters the equation of blame and personal responsibility that drives the assessment of proposed solutions. Each possibility requires careful thought and sober evaluation when assessing individual or societal problems. Neither can, sad to say, be proven to be true beyond a shadow of a doubt.

And perhaps this debate over blame and responsibility explains our stark political divide better than any other metric we can use. Our problems may not be urban vs. rural, college educated vs. those who are not, or even Democrat vs. Republican. It could instead be the case that we cannot agree whether the individual or society as a whole are to blame for many of the problems that afflict our families and communities, so it is impossible to find the common ground necessary to formulate solutions that seem fair and compassionate to all.

Of course, as any effective physician, judge, or legislator knows, some measure of “tough love” is sometimes necessary in order to effect the best—but not, of course, perfect—outcomes for both individuals and our society as a whole. To lack the will or the spine to make hard decisions when they are needed will only lead to more problems for all later on, and to simply dole out favor where none is warranted is the worst of all possible solutions to the many problems facing us today because yet more problems are almost certain to spring from our “kindness”.

However, we are all ultimately to blame if we cannot cooperatively work to help those in need of help in a manner that balances personality responsibility and at least a smidgen of magnanimity—while also recognizing there is never a “perfect” solution to any of the perfectly awful problems afflicting our nation and its people.

Conspiracy Theories Or Reasonable Questions?

As long as humanity has had a toehold on terra firma, we have looked for someone to blame for our woes. Our many problems, which for much of our history were blamed on either the disfavor or caprices of the gods, now are typically blamed on human agents—who are usually part of some cabal out to fool and manipulate us.

Whether we are seeking those behind the JFK assassination, the true story behind 9/11, those UFOs parked in Area 51, or the UN office behind Agenda 21 (perhaps our better conspiracies end with the number 1!), many are convinced that dark forces with malevolent motivations are controlling our world in pursuit of one dastardly agenda or another.

It is, of course, simple human nature to demand a simple explanation for catastrophe. Placating powerful gods at one time consumed those portions of our short and often brutal lives when we were not already engrossed with scratching our meager livings from the earth. Those who claimed to be able to divine and communicate with forces beyond our understanding always were able to win favor, and if some degree of protection from pain or horror might be secured through either ritual or avoiding proscribed behaviors, there would always be a ready audience for such notions. Our compelling interests in avoiding famine, flood, fire, and disease baked a certain degree of easy credulity into humanity’s DNA over the course of many thousands of years, and we must recognize this inheritance is within us all.

Today the thunder of the gods has receded somewhat, and our shamans are typically scientists. Based upon their sage advice, we gulp supplements, avoid bacon and cigarettes, run on treadmills like hamsters, slather on sunscreen, and assiduously attempt to forestall the inevitable deaths of both ourselves and those whom we love by seeking out the secrets to our ever elusive immortality. These behaviors are, by and large, fairly benign and typically work to our benefit. When, for example, is the last time you met someone sporting a large and unsightly goiter—and do most of us even know what this is anymore?

However, the flip side of our credulous belief in the wonders of science as an agent for individual improvement is our bizarre belief in the perfectibility of humanity itself. Hence our willingness to embrace ideas based on the crudest eugenic theories and our obsession with elevating ourselves—while degrading others—based upon what are ultimately the most minute variations in our genes. The hatreds and warfare that have soaked our species in blood now more typically manifest themselves in cartoonish characterizations that are more laughable than dangerous—although ethnic and racial slaughters still pop up around the world with depressing regularity. We obviously still have quite a way to go before we entirely stamp out stupidity.

Recognizing our twin desires to both avoid disaster—and to know who to blame when it befalls us—is necessary if we are to fully understand many of the political and social problems besetting our nation and our world. As our global affairs have become more complex and interdependent, the opportunities for exploitation have multiplied exponentially, and government and multinational corporations—often working hand in glove—have become the golden idols at the center of our lives. Far more powerful, intrusive, and frightening than the supposedly omnipotent gods of old, the power of government and industry to grant stupendous wealth, poison our bodies and minds, destroy our planet, provide uncounted comforts and distractions, take away our property and livelihoods, either greatly extend or savagely shorten our lives, and ultimately control every facet of our existences is unprecedented in human history. Zeus and Apollo were mere amateurs compared to Google and Goldman Sachs.

It should not be much of a surprise that our fear and wonder drives us to anxiously search for patterns and clues to help avoid the wrath of these new and implacable gods—and seek the reasons why they insist on punishing so many of us. Some call them conspiracy theories. More times than we realize, they may be remarkably reasonable questions about our remarkably unreasonable world.

Our grim awareness of the naked and shameless lust for wealth and power that drives so many who now control our lives makes the construction of the conspiracy theories/querulous narratives that animate our discussions all the easier. Understanding the extremist ideologies that undergirded so much of the Cold War, it is easier to imagine whispered instructions from a secretive group ordering the murder of a President. Knowing of the desire of multi-national corporations and their government cronies to secure control of Mideast oil supplies, one need not work too hard to see a stupendous plot to fake a terrorist attack against America in order to justify endless war. Having been kept in the dark about so many secret government military projects, little green men in flying saucers becomes a plausible explanation for so many of those bright lights in the night sky. Observing the never ending violence and drug traffic in our inner cities involving African-Americans, it is little wonder that so many are certain this is being facilitated by the government as part of a genocidal war of extermination.

Given the craven and corrupt behavior that is now so common among government officials and business executives, are we paranoid to believe that our needs come far behind the interests of those in power who are chasing riches and influence? One could, of course, argue that dishonesty and avarice have defined the leaders of every age—why else, after all, would one chase high office in government or business? However, we perhaps have a confluence of circumstances today that heightens the stench that often emanates from the halls of power.

The Information Age has been a boon to the average American citizen—and a bane to those in power. Although political scientists often trace our loss of faith in our leadership back to the twin national traumas of the Vietnam War and Watergate, I suspect the crux of the problem is the more adversarial style of journalism these scandals helped to create and the rise of alternative news sources—first in print and later on through the worldwide web. Just as putting a brighter lightbulb in a room causes one to suddenly notice the stained carpet and peeling paint, so has the variety and visibility of news and opinion targeted to—and now increasingly produced by—the masses led to an enormous range of information that speaks to the fears and concerns of virtually everyone.

Although muckrakers and iconoclasts like Ida Tarbell and I. F. Stone played influential roles in shaping opinion earlier in the 20th century, the 24/7 news and information cycle—and the many to whom cheap and powerful technology has now given an unsanctioned and unrestrained voice—has made it virtually impossible for the crooked and corrupt to fly beneath the radar undetected. This visibility produces a higher degree of accountability, but it also calls the motives and methods of business and government—today’s omnipotent yet mysterious gods—into question on a daily basis.

If this scrutiny produces more “conspiracy theories”, so be it. The rich and the powerful are perfectly able to defend themselves if the suspicions of impropriety are unwarranted. If we are compelled to listen to outlandish notions on occasion—only to have them later debunked—I do not find this too high a price to pay for the ongoing oversight that is now possible. If those in charge want our trust, perhaps they had best conduct themselves in a manner that is above suspicion. If not, we should be free to arrive at our own judgments concerning their veracity and good intentions.