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.

Advertisements

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.

What We Can Learn From The Bill Cosby Verdict

One would need to be living in a very deep cave to have not heard: Bill Cosby—once America’s favorite television comedian—is now a convicted sex offender. His conviction for aggravated sexual assault is both an affirmation that no one is immune from the force of the law and a depressing reminder of how those with power and influence typically believe they are far above the petty concerns of human decency and respect for others.

To say that everyone of a certain age is confused about finding out that Bill Cosby, Mr. Jell-O Pudding Pops, was in the habit of drugging and assaulting women—many, many women, apparently—is a stupendous understatement. Although he has been mostly out of the public eye in recent years—in part because of the mounting evidence of his criminal behavior—no one who came of age in the 60’s, 70’s, 80’s, or 90’s could escape his mirthful and beneficent presence. He was America’s dad—no doubt about it.

Reading the comments on the media posts concerning Mr. Cosby’s conviction, one senses a collision of vindication and dismay. Bill Cosby was, as much as we might want to now conveniently forget it, a trailblazer who transformed the portrayal of African-Americans on television by presenting smart, compassionate professionals—super spy, teacher, and doctor—on a series of hit shows. It would be difficult to overestimate his influence in changing the perceptions—and correcting the misperceptions—of so many Americans across many decades. To now discover the twisted and cruel soul behind those sterling performances feels like the worst possible betrayal to his many, many former fans.

Nonetheless, knowledge is much healthier than fantasy, and this conviction will likely be a signal moment in the ongoing national debate—and painful reckoning—regarding the sexual harassment and assault of the past and present. To learn what we now know about Bill Cosby’s behavior is part of a necessary maturation of our society’s attitudes regarding the daily interactions of men and women.

Every moment of every day the sexes commune in ways that are typically mundane and sometimes profound or life-changing—and which must always be respectful of necessary and perfectly reasonable boundaries of privacy and personhood. We are still, of course, not where we need to be—yet. Sadly, both women and men still often shout across a divide where the differences between compliments and insults, flirting and harassment, or honesty and deception still sometimes feels like a common language is lacking. Add in our very human and messy sexual desires, and we have fertile ground for the misunderstandings and misgivings that cause many to cut off communication altogether because they fear being misinterpreted—or worse.

Many women still feel that Hillary Clinton’s loss to Donald Trump—a man who once gleefully described how she was “schlonged” by Barack Obama during her 2008 presidential run—is emblematic of the deep river of sexism that still runs through our society, and one would need to be very blind or foolish to fail to notice that women are still many times not accorded the respect that is their due. Indeed, however one might feel about Hillary Clinton’s policy positions or public record, it is sad to remember the many humiliations she has had to endure—ranging from America’s weird obsession with her hairstyles while First Lady to a philandering and thoroughly disingenuous husband—during her long and accomplished career. Many women understood and forgave her faults because they had experienced similar pain in their own lives, and they felt like the voters’ dismissal of her in favor of Donald Trump was a confirmation of all their worst fears regarding their own shaky status in American society.

Now that Hugh Hefner has gone to his eternal rest, perhaps we can now likewise bury his adolescent Playboy philosophy that is perhaps understandable in twelve year old boys but is still unseemly, nonetheless. Keeping firmly in mind that our nation’s past has never been as innocent as we might like to believe and idiocy can never be entirely eliminated, perhaps we can at least resolve to speak courteously, behave responsibly, and listen thoughtfully when around the opposite sex.

The divides between men and women are likely not so insurmountable as we might sometimes believe, and if we can all be a little open and honest regarding our own faults and shortcomings—no one is perfect—that might ease some of the anger that men and women sometimes feel toward one another. I know we can all agree that what Bill Cosby has been convicted of doing is wrong—wrong on every level and in every possible way. That might provide a basis for a dialogue regarding how our pervasive hookup culture and media misogyny has degraded and debased both men and women—and how healing and understanding requires a broad-based commitment to rejecting our worst instincts in favor of our highest aspirations. There is a lot of pain, bitterness, and confusion to be found all around us in both men and women; restoring the health of our relationships is a shared responsibility that we can either shun or embrace.

Breaking down those walls and dialing down the defensiveness will not be easy for many because of past experiences that have made it difficult to trust one another again, but the alternative is loneliness and an empty existence. Therefore, just how hard of a choice is this to make—really?

A World Turned Upside Down?

There is a possibly apocryphal story that, upon surrendering to the American revolutionaries at the Battle of Yorktown, General Cornwallis instructed the British Army band to play “The World Turned Upside Down”. The situation must certainly have seemed so to the British, smugly certain of victory against the colonists, whom they deemed to be mere rabble—the “Deplorables” of their day. These farmers, laborers, and small business owners certainly must have seemed to be no match for the power and glory of the Empire at the very peak of its influence.

The world has now turned upside for a great many people who were convinced the sun would never set on the D.C. empire of ever-expanding government and regulation fueled by ever-increasing tax hikes and federal bureaucracy. Watching the sea of exceedingly sour Democratic faces during President Trump’s State of the Union address last week, it was hard not to feel a twinge of sympathy for those who still cannot seem to reconcile themselves to the new reality. This perhaps helps to explain the policies and positions now shrilly advocated by the Democratic minority that seem so at odds with both their party’s historical norms and current rhetoric.

I grew up with a Democratic Party aligned to the interests of blue collar workers. This stance obviously translated into policies that put cash into the pockets of the hard-working middle class that created so much of our nation’s prosperity through both their labor and personal spending. Although I realize the Democrats many years ago morphed into the party of Silicon Valley and Wall Street—it is no mere coincidence that Nancy Pelosi is from San Francisco and Charles Schumer is from New York—I believe their implacable opposition to the business and personal tax cuts recently enacted by the Republican Congress is spectacularly suicidal. Staking out an unyielding position against a bill that is already driving capital investments by businesses, prompting many corporations to hand out immediate cash bonuses to their employees, and reducing the federal tax bite for the vast majority of workers seems difficult to understand except as a short-sighted defense of overpaid D.C. bureaucrats instead of our tax-weary citizenry. For someone old enough to remember the Democratic Party as it used to be, this seems an upside down reality.

By the same token, it is probable that several shelves of books will someday be written to explain the Democratic somersault on the subject of illegal immigration. Democrats have somehow quickly moved from President Obama’s early vows to crack down on illegals to a current advocacy—if not outright endorsement—of sneaking into the United States and staying here. This stunning change in perspective among Democratic lawmakers is, in addition, today conjoined with a reflexive support for unabated migration from nations known to support terrorism. One has to wonder how Democrats plan to win back voters who don’t live in. . . San Francisco or New York. Watching so much of the nation’s electoral map turn Republican red two Novembers ago should have been sufficient to convince all but the most ideologically blinded to reconsider extremist immigration policies that helped put their party out of power—but it seems that upside down is the position still preferred by many Democratic loyalists.

By the same token the Democratic Party’s loud defenses of both the FBI and Special Counsel Robert Mueller, both of whom recently seem to be executing their investigative duties in manners that should raise the eyebrows of all but the most extreme partisans, also appear quite odd when put in historical context. I am old enough to remember when liberal Democrats (Is there any other kind today?) deeply distrusted the FBI and its motivations. Moreover, one need only glance back at the Clinton presidency to discern a very different attitude toward special investigations with elastic and expansive mandates.

The dead end search for Russian collusion in the 2016 election now seems to have mutated into an endless fishing expedition—accompanied by far too many self-serving and inflammatory leaks to the press—that serves to provide the unending appearance of wrongdoing in the absence of actual evidence. One need only to flashback to Kenneth Starr and his dim-witted defense of democracy, which eventually took the form of prosecuting the President of the United States for Oval Office nookie, to wonder what has snapped inside Mr. Mueller’s Democratic cheerleaders, who seem to have completely forgotten the damage done by odd investigative zealotry just a couple of decades in the past. Reality again lands bottom side up.

There is, however, one ongoing investigation in Washington that has real potential to be a political—and perhaps Constitutional—bombshell. Someday soon the Inspector General for the Department of Justice will be releasing a report regarding the FBI investigation of the Hillary Clinton email scandal—and the inexplicable assertion by former FBI Director James Comey that no federal laws were violated by either Secretary Clinton or her associates. If the Inspector General’s report were to show that the highest law enforcement officials in our nation were in fact tailoring their investigations and prosecutorial recommendations to help throw a U.S. Presidential election to one candidate over another, that would be a crisis of monumental proportions that would compel swift action to restore the integrity of our federal government.

Failing this were it to be necessary, our faith and trust in the guarantees embodied in the Constitution would be turned upside down, inside out, and shaken to the core. We cannot allow this to occur.

The Problems Posed By To Kill A Mockingbird

Recent media reports regarding efforts by a school district in Biloxi, Mississippi to drop To Kill A Mockingbird from their curriculum have generated understandable concern. As schools continue to grapple with both disorienting societal changes and increasing political polarization, we are inevitably going to see more challenges to specific classroom content and practices, which should concern any professional educator. Anger rarely results in good policy decisions.

Our societal discord certainly connects to broader questions regarding what we expect of our K-12 schools. That fine line between education and indoctrination will be ever more difficult to discern as educators struggle to find ways to challenge students to think without falling into the trap of preaching to them. However, given the well-documented deficiencies in critical thinking skills that colleges and employers must grapple with today, it is more important than ever to encourage our K-12 schools to shake students from their easy assumptions and comfortable mental inertia. The question is, of course, how best to do this.

I’ve taught To Kill A Mockingbird to high school students in the past, and they were often shocked to read about the routine degradations inherent in the entrenched racial discrimination of our nation’s history. If nothing else, the novel served as a lesson that allowed us to ladder into discussions about what has—and still has not—changed in America today. It has been many years since I’ve had the opportunity to teach this particular novel, but I suspect that my classroom lessons and activities regarding To Kill A Mockingbird would need to be very different now because I would be compelled to address uncomfortable changes in our perceptions of the characters and their motivations.

The cartoonish delineation between the heroes and villains in To Kill A Mockingbird has always posed pedagogical problems, although it eases reading comprehension for an audience often composed of 8th or 9th graders. On the one side we have the Ewell family, who are a caricature of what we expect—and perhaps prefer—our racists to be, an ignorant and violent clan devoid of even an iota of decency or honesty. Facing off against them, we have Atticus Finch, a caring and compassionate lawyer and tragic widower raising two intelligent and inquisitive children who are miraculously free of the least taint of racism. Caught in the middle we have Tom Robinson, falsely accused of rape by the evil Ewells, and the very personification of stoic dignity in the face of injustice. There are no shades of gray among these main characters; there are only, if I may be forgiven this analogy, broad strokes of black and white.

To Kill A Mockingbird, were it to be published today, would likely face a somewhat more mixed critical reception. Aunt Alexandra’s desperate efforts to put a gloss of girlishness on the tomboyish Scout would likely be more harshly judged by contemporary feminist critics. Mr. Dolphus Raymond’s sexual relationships with African-American women would raise questions regarding power differentials and consent. Boo Radley’s peculiar interest in his prepubescent neighbors, which obviously includes covertly observing them and following them outside the house at night, might not be so wondrously free of any question of pedophilia—or at least “stranger danger”—in today’s less innocent world. It may well be that the year of the novel’s publication back in the mists of 1960 was the very last moment in our cultural and social history when the questions and answers seemed quite obvious and easy, so complexity and nuance could be blithely set aside in the pursuit of an uplifting fable.

I’ve always been a bit leery of joining in the chorus of hosannas regarding To Kill A Mockingbird, and perhaps this is because I have always found Atticus Finch a bit less than admirable—which I realize is near to sacrilege to some. Although he has the best possible intentions in the worst possible situation, Atticus Finch and his legal machinations, in a final and flinty-eyed analysis of outcomes, actually come to nothing. Tom Robinson is dead, no minds are changed, and the Jim Crow system that informs the actions of the town and its people is wholly unaffected.

Atticus Finch’s attitudes and actions are in many respects a foreshadowing of the well-meaning (but ultimately ineffectual) white liberals in the 1960’s whose best intentions would be overrun by the flame and fury that finally destroyed Jim Crow segregation and its many local permutations. Although the novel suggests that readers should derive some cosmic satisfaction from the death of the thoroughly despicable Bob Ewell, which also allowed Boo Radley to finally reveal his essential human decency (although it might be reasonably observed that manslaughter is a mighty odd plot device to get there), it would be impossible to argue the trial of Tom Robinson produced any significant changes in the town or its people.

Of course, all of this speaks to the many moral compromises that inform the book. The worst of the town of Maycomb and its racist attitudes is on display, but the best of the many small but significant accommodations the decent need to make each day to survive in an indecent world also bear our examination. It could be argued, if one really was looking for hope for a better future, that the most moral course of action Atticus Finch could have pursued would have been to refuse to represent Tom Robinson, thereby removing the thin veneer of respectability that placates those whose mute compliance is needed. Imagine how different the novel would have been if Judge Taylor had not been able to use Atticus’ stirring but pointless speech to soothe the consciences of those who knew just how profound an injustice was being done. Moral but meaningless victories serve the needs of tyrannies that need to smooth over the rawness of oppression, and we should not fail to recognize that Atticus’ carefully restrained outrage sounded lovely but changed nothing at all.

All of this is, of course, beside the point of why the novel is now often banned. The norms that now rule in many communities judge the politically incorrect—but historically accurate—usage of the “N-Word” as both insult and casual descriptor to be too much to bear in our sensitive school and social climates. This is understandable, but it also opens up opportunities for classroom discussion of the novel and its context. If we are going to crusade to excise every questionable bit of U.S. history from our schools instead of engaging in the conversation, research, and exploration of our past that is a core mission of education, we condemn our children to facile sloganeering instead of intelligent and well-rounded inquiry that will prepare them for a future where the answers will be neither obvious nor easy.

Perhaps the key to continuing to use To Kill A Mockingbird in our nation’s classroom is to gently remove it from its pedestal and recognize its limitations—just as acknowledging our own human limitations is the precursor to a better understanding of our world and ourselves. To Kill A Mockingbird is not a perfect novel, and the tiresome insistence on canonizing it impedes an honest engagement with what can be learned from a thoughtful and critical reading. Just as a person can be wonderful but flawed, so can a book fall into that same category. If we can accept this, perhaps we can finally move forward instead of squabbling without end, which ultimately does nothing to improve the education of our children.