Better Law, Worse People: Title IX and First Step Act Edition

Much as I admire Lara Bazelon, she hurt my feelz.

There is an uncomfortable truth in the current system. No one wants to talk about it.

No one? Why do you erase my existence? Okay, that was almost certainly written by the headline guy at the Times as clickbait, so it’s really not Bazelon’s fault. Her op-ed relates the dirty underside of Title IX campus sex adjudications, that they have a huge disparate impact on black males accused of rape and sexual assault.

The Office of Civil Rights does not collect data on race in Title IX cases, but the little we know is disturbing: An analysis of assault accusations at Colgate, for example, found that while only 4.2 percent of the college’s students were black in the 2012-13 school year, 50 percent of the sexual-violation accusations reported to the school were against black students, and blacks made up 40 percent of the students who went through the formal disciplinary process.

We have long over-sexualized, over-criminalized and disproportionately punished black men. It should come as no surprise that, in a setting in which protections for the accused are greatly diminished, this shameful legacy persists.

Lara offers an anecdote to make her point. While it’s not a bad anecdote by any means, there are better. If you really, and I mean really, want to get to the crux of the problem, then the question is how many white college women accuse black men of rape, but only after their taste of brown sugar gets out, whether to their girlfriends or boyfriend? Feminism may make this scenario extremely unpleasant, as it puts the onus of racism where it belongs, on the accusers.

I bet Lara is well aware of this, even if she prefers not to get that deep into the problematic problem. Still, her anecdote is sufficient to take her stand.

Education Secretary Betsy DeVos’s proposed regulations overhauling how colleges handle sexual assault, which may become law in January, are far from perfect. But there is a big reason to support them: I’m a feminist and a Democrat, and as a lawyer I have seen the troubling racial dynamics at play under the current Title IX system and the lack of due process for the accused. Ms. DeVos’s proposals take important steps to fix these problems.

The left despises Betsy DeVos, whether because of anything she’s actually done or merely because she serves Darth Cheeto. Lara Bazelon’s point is “so what?” If the changes are sound, then what difference does it make whether you’ve ever been invited on DeVos’ yacht? This is about fixing horribly bad law, not about inviting Betsy to the sleepover. And while the changes remain highly imperfect, they are far better than what Catherine Lhamon rammed down America’s throat under Obama.

Speaking of President Obama, what is now on the table, the First Step Act, was the highly watered down iteration of reform proposed when he had the helm, the reform that even Chuck Grassley was willing to approve. But it went nowhere, and Obama wasn’t willing to push either the good version or the tepid version. But Trump is.

Donald Trump claims he’s taking a step toward desperately needed criminal justice reform, but he’s not. A bipartisan bill known as the First Step Act has been described by activists as groundbreaking in the fight to end mass incarceration, and Mr. Trump has said he’s “waiting with his pen for the bill to land on his desk. Some support the bill because it will reduce some sentences and lead to some savings when it comes to the cost of incarceration. Having spent many years working with people in prison who are seeking release, I respectfully disagree. This is not a case in which a little reform is better than none.

That the First Step Act falls far short of what’s needed is nothing new, but not the point. The president who should have put his capital on the line for reform did nothing, while the president who is hated is doing something. Is it shocking that the reform act, tabled under Obama and now possible under Trump, is less than one would hope for?

But it prevents those convicted of the most serious crimes from reducing their sentences at all, and in doing so it perpetuates the false narrative that people who commit violent crimes are fundamentally different from those who commit nonviolent crimes. Ironically, it prevents those convicted of the most serious crimes from reducing their sentences by participating in the programs this bill cites as essential to smart criminal justice reform.

So the act fails to address everything that’s wrong with the system? Obviously. But that it’s underinclusive isn’t the same as being counterproductive. If we need to save ten people, but can only save five, is it better to let the five suffer because we can’t save the ten?

I know from my experience as the executive director of UnCommon Law, a nonprofit law firm, that this is counterproductive in the fight for meaningful criminal justice reform. We spend months and even years working with people in prison for violent crimes, helping them to develop the emotional intelligence and communication skills they’ll need upon release from prison. More than 200 of our clients have been released from life sentences, and not a single one has gone on to commit a violent crime. But this bill tells my clients their personal transformation doesn’t matter.

So deprive those who would be helped by this law because it “tells [your] clients their personal transformation doesn’t matter”? First, that’s nonsensical. Second, it’s false. It tells them that there is still work to do, that we have not yet “fixed” the problems and that while some will benefit, everyone will not.

But at least the act offers the possibility of some prisoners having their sentences reduced, some problems being fixed, which beats the hell out of none. None is what we got under Obama. Just because this same old act that Obama didn’t care enough about is now possible under the president whom no one would have expected to support any reform doesn’t make it bad law. Hate the people all you want, but don’t hate good better law because of bad worse people.

8 thoughts on “Better Law, Worse People: Title IX and First Step Act Edition

  1. LocoYokel

    I seem to recall hearing about something about good and perfect being enemies.

    Something, perfect something enemy something good.

    1. SHG Post author

      There are times when the perfect is the enemy of the good. There are times when the imperfect is the enemy of the good. Distinguishing between the two is harder than spouting platitudes would suggest.

  2. John Neffj

    I live in flyover country and it appears to me that we have grassroots gridlock on criminal justice policy with the the only issue where there is agreement is that we are spending too much money on corrections. The Fist Step Act was an attempt to male a modest reduction in the number that returned to prison and it easily passed in the house. I guess the members of the house though a small difference was better than no difference.

    Some of the senators think otherwise.

    Where is the 10th amendment now that we need it?

  3. AnonJr

    I do wonder if the fact that Obama wouldn’t pass it was a factor in Trump’s support. I can easily see a canny activist telling Trump about how well loved the reform is, and how Obama didn’t have what it takes to pass it, and play on what Trump is.

    Don’t hear what I’m not saying, I’d love to see this pass. It just raises those thoughts about means and ends and all that.

  4. David Meyer-Lindenberg

    Something Wattley, the NYT op-ed author, said at the end caught my eye:

    But we should not be tempted by the false promise that this is the beginning of a more expansive reform effort.

    Yes, well. Does he imagine that if he and his friends were to somehow scupper the First Step Act, Congress would replace it with a better mousetrap?

    1. SHG Post author

      There remains an inexplicable belief that someday, somehow, soon the woke will inherit the earth and make a better society, so no false promises of half measures until they take charge and fix it right.

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