The Sliding Scale

One of the dirty little secrets of those who sit on the far side of the courtroom from the jury is that the Innocence Project makes our efforts harder.*  You see, the idea that an innocent person has been wrongfully convicted is horrific to all good people, Justice Scalia excepted.

The good that comes of it is that the mechanisms giving rise to wrongful convictions are put under scrutiny, shown to all the world as junk in either their application or effectiveness.  The bad is that it focuses public concern on the innocent, as if those are the only people entitled to our concern.  The guilty are throwaways.

The fact is that most defendants are guilty.  Maybe not guilty as charged, as overcharging is a rampant problem given that prosecutors are trained to charge hard and fast, to use charges to coerce outcomes, whether cooperation or plea. But then, most people can’t be bothered parsing the details of a prosecution for such minutiae as how guilty a person is, what did he do and what didn’t he do.  Guilty is guilty, and we have enough on our hands worrying about the innocent that there is little room left to concern ourselves with the guilty.

At SSJN, Steve Bogira writes about how the media weaves its stories to fit into readers’ willingness to give a damn.

The mainstream media and “social justice” journalists treat criminal justice subjects compassionately at times, but the beneficiaries of their compassion diverge. The mainstream media focus on the victims of crime, while social justice journalists focus on victims of the criminal justice system.

The term “social justice” journalists makes me cringe.  The implication is that this is driven by morality and some existential sense of “justice.”  To a lawyer, that’s an absurdly slippery slope, and a large part of the problem. When we start out concerned only with those people for whom our feelings are compassionate, we exclude those who are bad dudes. For lawyers, the dichotomy at the heart of social justice types doesn’t exist. We defend them all, and we do so with the same zeal and purpose.  But I digress.

The former task is easier, because readers are quick to sympathize with crime victims. The latter task is commendable, because it involves telling the stories of outcasts.

Yet, even those of us who take on the latter task still tend to stick to the easier parts of the topic. Our favorite subjects are innocent people who are wrongly convicted.

We fear our readers can’t possibly develop compassion for anyone who robs, beats, rapes, or kills. We ourselves have trouble feeling compassion for such offenders; to do so violates a taboo. Only if the violent offender has the mitigating factor of youth, or sometimes mental illness, are we likely to take on his or her story.

But this means we neglect much that is immensely significant.

Bogira does an excellent job of describing the sliding scale of social justice, and indeed, its insidiousness infiltrates choices of who is deserving of our concern, our mention, our support constantly.

There have been numerous times when I’ve decided against posting a video showing a guy getting a beating from a cop because it also shows that guy behaving badly, and I know that many of the people watching it will be blinded to the wrongdoing of the cop because of the wrongdoing of the perp.

The reactions will range from “he deserved it,” because anyone who does anything wrong deserved anything that happens to him, to “what do you expect”?  It becomes tiresome trying to explain to hostile commenters that even bad dudes have constitutional rights; that even bad dudes get to be arrested without having their face broken for kicks. And by kicks.

But I make the decision not to use these videos, as they fail to serve as examples that make the point and require a depth of explanation and understanding that too many lack.  Among those who lack that depth of understanding, unfortunately, is Bogira.

But stories about the truly guilty and violent can have a larger target: our nation’s structural inequality, and the wounds it inflicts every hour, every day, on African-Americans more than any other group, in segregated cities throughout the nation.

See how the “social justice” mindset distorts overarching concerns by force-fitting them into acceptable paradigms?  Well sure, the poor and minorities suffer from structural inequality.  So it’s cool to beat the crap out of white middle class guys for fun?  Are constitutional rights only available to those people who suffered historic deprivations?

Sadly, the criminal defense bar has often been complicit in this misguided view.  There is a strong cadre of social justice warriors among defense lawyers, who see their role as serving moral justice. They embrace progressive views of the system, filled with compassion toward those who are deserving in their eyes. They repeat platitudes and reinforce the notion that the system is unjust to their favored sacred cows.

The rest of the defendants?  Not so much.  You see, most of the people we represent aren’t particularly sympathetic souls and don’t fit neatly into the social justice paradigm.  They’re just people, sometimes pretty bad dudes, sometimes really bad dudes.  It’s hard to get all worked up about the “injustice” being done to them.

Making these connections convincingly, and making readers care about them, is a daunting challenge for journalists. It requires us to develop a deep understanding of people who have committed abhorrent acts–and then it requires us to write skillfully and compassionately about them. That the challenge is daunting is not a reason to shrink from it.

Indeed, it is hard, but not so much because of the need to write “skillfully and compassionately” about them, but because it doesn’t matter that they aren’t the sort of people you would want to invite to dinner or have date your child.  Everybody, from the most disgusting, most vicious defendant to the wrongfully prosecuted innocent, is entitled to have their constitutional rights honored.

From not being beaten, to being presumed innocent, to not having their homes ripped to shreds to find warrantless proof of their crime, to not being coerced into a guilty plea, to being allowed to present a defense, to a fair and impartial jury, these rights are due everyone, including those for whom you have no sympathy whatsoever.  This has nothing to do with compassion, but with the Constitution.  And as long as we’re selling this narrative on the social justice rack, we continue to enable this misguided appeal.

H/T Doug Berman

* Edit: Apologies for the Gertruding, but as some find this a troubling nuance to understand, it appears necessary to state the obvious: this is not to say that the Innocence Project does not do great things, or should be disbanded. However, despite the important work it does, it also has problematic negative collateral consequences, one of which is that its emphasis on concern for the “innocent” tends to create a void of concern for those who are not, or cannot prove their innocence.

As with many things in life, it’s neither all good nor all bad. On the whole, the value of the IP far exceeds any problems it causes, but that doesn’t mean it is without issues.

 

35 thoughts on “The Sliding Scale

  1. Lise LaSalle

    Thank you for writing this insightful article. We constantly hear about victims and justice in the name of a victim, but there is never room for restorative justice for the guilty parties. We are not allowed to have compassion for the inmates. It is always about the wrongfully convicted. What about the wrongully sentenced?
    Trials by media is vampirism using the blood of a defendant to boost ratings. For it to happen, flawed human beings have to be turned into unredeemable monsters or even the boogeyman.
    All the attention is on Knox and Sollecito, but what about all the inmates sitting in prison because they were overcharged? Or drug addicts getting no rehabilitation.
    Solitary confinement should be the biggest scandal, but not many people are bothered by this barbaric practice.
    The death penalty is scandalous, but unless it is applied to an ‘innocent’ person, it seems to be readily acceptable in the US. What about the fact that a first time offender like Jodi Arias with no priors and a history of mental illness is slapped with it and no one cares?
    Due process is for everyone and it come could come back to bite any of us if we do not make sure it is respected.

    1. SHG Post author

      Your comment leads me to think that I’ve been terribly unclear. Even “unredeemable monsters” are entitled to the full panoply of constitutional rights. The efficacy of the death penalty doesn’t depend on Jodi Arias having a clean prior record. The natural sympathy toward victims of crime doesn’t come at the expense of the worst defendant’s right to due process. And the deprivation of that right doesn’t diminish the suffering of victims. It’s not a zero sum game, where only the sympathetic get a chance to play.

      1. Lise LaSalle

        I guess I have been unclear. I thought you said ‘From not being beaten, to being presumed innocent, to not having their homes ripped to shreds to find warrantless proof of their crime, to not being coerced into a guilty plea, to being allowed to present a defense, to a fair and impartial jury, these rights are due everyone, including those for whom you have no sympathy whatsoever”
        Even if we are all entitled to a panoply of constitutional rights, they are constantly violated for the ones for whom people have no sympathy whatsoever.
        Like being charged with the death penalty because you are part of a high profile case or taking a plea because you are bullied and have no money for a competent attorney.
        I didn’t say that the efficacy of the death penalty depended on Jodi Arias having a clean prior record. I mentioned it because many inmates in Arizona have committed worst crimes and had priors and were not charged with DP.
        I connected her case to ”develop compassion for anyone who robs, beats, rapes, or kills. We ourselves have trouble feeling compassion for such offenders”
        I will stick to reading your articles. Gosh I thought that being able to count was enough to comment, but I will abstain if I obviousy cannot grasp your message.

        1. SHG Post author

          Gosh I thought that being able to count was enough to comment, but I will abstain if I obviousy cannot grasp your message.

          That’s a wise choice. Not because the nuance of this post went sailing over your head. That happens to all of us at times. But because of you reaction to my reply, that you missed the nuance rather than your anticipated tummy rub of appreciation, caused you to respond with this comment.

          For future reference, by the way, when you quote something, don’t preface it with “I thought you said,” as it’s obviously exactly what I said. What it means is the question, and that’s not as easy as cut and paste.

          1. Myles

            Whenever I think that maybe you’re exagerating the problem with non-lawyer comments, something like this comes along to remind me that you’re not. Where’s the tummy rub kitty pic you use?

            1. SHG Post author

              See her parting shot. Not to watch another comment thread go down the drain, but this is the joy I endure. The irony is that my initial reply to her was pretty darned nice, but apparently not respectful enough to suit her. Then again, narcissists are hard to please.

            2. Myles

              The “I got it” when she didn’t seems to always be the dead giveaway. But (should I have posted this comment below?) insults? Just another flaming nutjob. The subject matter is like a magnet for fruitcakes, and they’re all so fragile.

  2. Lise LaSalle

    Tummy rub of appreciation? I expected a respectful exchange because I care about restorative justice and I rarely read articles even remotely approaching the subject. I was impressed when you said ‘The bad is that it focuses public concern on the innocent, as if those are the only people entitled to our concern’.
    I don’t think your message went sailing over my head at all, but your insults didn’t.
    You just lost a reader.

      1. Not Jim Ardis

        You have lost the ever-important Social Justice Warrior demographic. How do you ever expect to become a beloved icon of the internet without their support?

  3. Patrick Maupin

    > You see, the idea that an innocent person has been wrongfully convicted is horrific to all good people…

    If the recent polls are to be believed, then almost 60% of the people in this country think torturing terrorism suspects is hunky-dory. If that’s OK to do to people who haven’t even been through the legal system, then it’s hard to see how anything done to the ones adjudged guilty could be any sort of a problem.

      1. John

        I am pretty sure the poll would have had similar results prior to 9/11/2001. As you said…

        “There have been numerous times when I’ve decided against posting a video showing a guy getting a beating from a cop because it also shows that guy behaving badly”

        I know someone who hates anyone who publishes “how to survive in prison” books because of the possibility they reduce suffering. In Wisconsin in 1998, there was a campaign against a judge who upheld a mistrial after it was proven that prosecution witnesses had committed perjury. They retried him without the perjury, convicted him and sentenced him to life in prison. However, the fact that he was convicted on perjured testimony was A-Okay with the people (including the police union) running the campaign. People only care about the rights of “good people” in court, in war, in business, etc.

        1. Patrick Maupin

          > I am pretty sure the poll would have had similar results prior to 9/11/2001…

          And I am pretty sure that you didn’t do any sort of google search, or you would have found that the numbers have actually shifted a lot in the last several years. But I’m not sure whether to blame 9/11 or Fox’s show 24.

  4. laserhaas01

    Fine…. Here’s your sign (of what)…..

    We’ll shut down the innocent project, around the world and here in the U.S.

    So that you can prove what genius there is in your premise
    (and desire that the innocents get nixed meanwhile – for your comfort).

    May as well stop sending food to the starving in Africa, elsewhere and the homeless too;
    because those dam extra tractor trailers and ships are just soooooo dam annoying!

    1. SHG Post author

      Don’t be a moron. I didn’t say the Innocent Project is a bad thing, or suggest that it shouldn’t exist. It does great work. At the same time, that doesn’t mean that there can’t be any negative collateral consequences to its work. I realize that many of the ideas here can be way too hard for some people to grasp, but try harder.

    2. Tex

      To those of us involved, there is nothing new about the fact that there are some problems stemming from the work of the Innocence Project, as well as their great results in obtaining exoneration for innocent prisoners. As SHG says, it’s not a condemnation of their work, but a facet that also deserves discussion.

      You do the Innocence Project a grave disservice by your comment, as it’s concerned with all consequences of its mission, good and bad. Ignorant comments like this do not further its mission.

      1. SHG Post author

        Sorry, Tex. Up to my eyeballs in stupid today. Obviously, knowledgeable people are well aware of this, and certainly don’t share such a simplistic view.

  5. laserhaas01

    Hey, fret not Lord of Censor, with haughty crown narsy…

    [Ed. Note: Balance of nutjob stupidity deleted, but I like the turn of phrase, “Lord of Censor, with haughty crown narsy,” but that’s as far as I’ll go.]

    1. Sgt. Schultz

      Uh oh. It looks like somebody’s parents weren’t monitoring their little boy’s internet usage today. You can always hit the blue button to the right if the grown up hurt your feelings.

        1. Fubar

          They’re just paying homage to a little noted and unremembered Jacksonian Democrat loyalist’s escape from Governor William Seward’s plot to banish him to Alaska. The world is a mystery if you don’t know history, or at least make it up as you go along.

          When the Whigs ousted Governor Marcy,
          Lord of Censor, with haughty crown narsy
          Fled to Persia. It’s said
          That the voice in his head
          Made him secretly fluent in Farsi.

          1. Sgt. Schultz

            The juxtaposition of laserhaas01’s insane gibberish and Fubar’s brilliance is more than I can stand.

  6. Mark

    “The good that comes of it is that the mechanisms giving rise to wrongful convictions are put under scrutiny, shown to all the world as junk in either their application or effectiveness.”

    That is extraordinarily significant. When the public is horrified by headlines that detail the release of an innocent person who has already served xx amount of time in prison, then perhaps it supports a push in a direction that favors all defendants. Public fear is what drives the mob mentality against the accused, and that drives a lot of the careless decisions by legislatures, prosecutors, and judges interested in appeasing the voters that elect them. Wrongful convictions can generate some public fear that theoretically may push in the other direction, perhaps giving pause to those respective parties before they tighten the noose just that more.

    “One of the dirty little secrets of those who sit on the far side of the courtroom from the jury is that the Innocence Project makes our efforts harder.”

    I sit at that table with many defendants who are supposed to be presumed innocent, but often we find ourselves combating against a blatant disregard for that instruction. If the Innocence Project and its progeny help combat the perception that “he wouldn’t be sitting there if he wasn’t guilty of something,” then that does not make my efforts harder; it may actually cause the trier of fact to take the presumption of innocence seriously and to hold the prosecution to its burden.

    1. SHG Post author

      Agreed on both points. Again, this is about one negative collateral consequence, and it is not to suggest that the Innocence Project doesn’t otherwise do great good.

  7. Neil

    In several uses of the word ‘justice’ in your blog post, justice takes on the aspects of an accomplishment. Justice is qualified into its various kinds of accomplishment. For instance there are the social and moral kinds of justice. These are the accomplishments sought after by SJW’s and cadres of defense lawyers. The notion of justice as a virtue is absent. Regarded as a virtue, justice is not an accomplishment, but the habit by which we may lead better (more just) lives. It’s a virtue we can exercise in all our encounters, and a habit worth developing. To the extent that our institutions can have virtues, they can also have the virtue of justice.

    I guess the question for SJW’s is, do they believe institutions can deliver justice the accomplishment while neglecting justice the virtue?

    1. SHG Post author

      I have no clue what you’re trying to say. Just so you know, I am generally antagonistic to the word “justice,” and use it here only because its the paradigm of the underlying article. In fact, the first post I wrote at SJ was about the variable meaning of justice.

  8. Dragoness Eclectic

    Your post reminds me of Eliza Doolittle’s father in “My Fair Lady”, who was one of the “undeserving poor”, as he put it. Even back then, your point was being made. In a musical.

    Thank you for your posts. Almost all of them have made me less stupid; many of them help me to be a more compassionate human being.

  9. T.

    Your points on the Innocence Project and the non-use of videos of police beatings are well taken. But how else are we to “get through” to the public? (assuming arguendo that’s an objective)

    Speaking out and voting wisely doesn’t seem to have gotten us all that far in the past 14 years (probably longer, but I actually trusted/liked police when I was in grade school so I didn’t pay attention). Video seems, anecdotally at least, to shock some of the ambivalent-to-marginally-pro-law-enforcement folks in the middle even where there’s visible wrongdoing by the accused. I’m not sure what else to do to pull those folks successfully — and they’re needed if “voting wisely” will eventually yield results.

    1. SHG Post author

      Answers are cheap. Good answers are more expensive. Perfect answers are priceless. I don’t have a perfect answer.

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