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.