As befits a discussion group devoted to politics, philosophy, and other public issues, CivCon has done a lot of topics on the Constitution. Oddly though, we have never looked explicitly at how democratic our founding document was and (as amended and interpreted) is. I phrased the topic as a normative question, since is begs the question of ought. It also might make for a livelier discussion and prompt us to make the political preferences behind our opinions more explicit.
I see more than one way to approach our pondering, too. We could focus more on the standard (but important) stuff, like looking at the basic structures and functions the Constitution sets up. As Jim Z. noted last week, the whole document is in some ways “rigged” against pure democracy; e.g., the Electoral College, two senators per state regardless of size, an unelected judiciary, vetoes and supermajorities requirements, etc. College students spend a lot of hours reading classic books on this topic, some of which are referenced in the links. We definitely should discuss why the Founders did this and whether it’s too little or too much democracy for the 21st century (or for our tastes).
A second approach would be to look at the Bill of Rights. These rights are fundamental to protecting democracy. Are they being enforced today as designed, and is that sufficiently democratic? I’m thinking campaign finance as free speech, curtailment of civil liberties in the War on Terror, and conservatives’ religious freedom initiative (bakeries and gay weddings) might come up in this part of the meeting.
Thirdly, we could take a strict result-oriented approach. How responsive is our national government to the will of the people? Whose interests does our constitutional system represent and who does it not listen to? Some big studies have tried to quantify that in recent years. Their conclusions are sobering.
Here are some guiding discussion questions and suggested readings/skimmings.
DISCUSSION QUESTIONS –
- Was/Is: What are the major anti-democratic (or at least non-majoritarian) features of the Constitution? Why did the Founders include them? What key components of democracy were left out and why?
–> Which of these have survived unchanged to today and why?
- Ought: What is “too much” or “too little” democracy? Upside/downside of both?
- Rights: Which rights (speech/religion, voting, property, etc.) matter the most? Are any rights under assault or overly-broad now?
- Results: How responsive is our constitutional system to the will of the people? Which people? Evidence?
–> Is un-accountability self-correcting via elections?
- Future: What are your biggest concerns about our constitutional democracy going forward?
SUGGESTED BACKGROUND READING –
Not democratic enough –
- Our Undemocratic Constitution: Well-known book, skeptically reviewed (by Cass Sunstein). Much shorter description/review here. Recommended.
- A similar view from another well-known scholar.
- The Framers’ Coup. Constitution was an anti-democratic power grab.
Bad consequences –
- In highly polarized times like now, the Constitution’s undemocratic features produce gridlock. Recommended.
- Too much economic inequality threatens constitutional democracy. Recommended.
- But don’t despair! Citizen activism can expand how democratic the Constitution is interpreted to be. [Oops link changed to the right one Sunday eve.]
No, too MUCH democracy is our problem –
- Excessive democracy is destroying ours. Recommended, semi-conservative POV, but long. A good, short direct rebuttal to it.
- We have too much democracy. Requires free site registration.
NEXT WEEK: Fascism, Part II – Is a global movement emerging?
Linda, who’s a criminal defense attorney in private practice, suggested this topic. Since 1995, the number of U.S. prison inmates over age 55 has roughly quadrupled. They now comprise one-sixth of the entire U.S. prison population.
Why so many aging prisoners? One cause is the sheer size of violent crime wave that roiled the United States from the late 1960s to the early 1990s. Another is that the country is aging in general, including those that commit serious crimes. But most notoriously to blame are all of those harsh sentencing laws passed by state legislatures and Congress in response to the crime wave and the War on
Some People That Use Certain Drugs. Civilized Conversation has discussed both mandatory minimum sentences and racism in sentencing on separate occasions.
Having so many aging prisoners is a problem for a lot of reasons. As one of the links below says, older prisoners “require special attention in prison, as they often suffer from chronic diseases, including diabetes, heart failure, cognitive impairment, and liver disease, as well as age related disabilities. They are also more vulnerable to victimization in prison.” Just providing their health care costs a fortune. Many prisons have expensive geriatric wards. Nearly 80% of all deaths in prison are older (55+) prisoners.
Recently, the Obama Administration and some state governments – including California’s – have tried to devise programs to speed compassionate release for the least dangerous elderly prisoners whose further imprisonment makes little sense. This has proven harder than you might think, both administratively and politically. I imagine that the Trump Administration will end all federal efforts and that bipartisan criminal justice reform of any kind is dead. But, who knows?
Below are some rather duh-level discussion questions and a few straightforward readings on the elderly prisoner problem and on mass incarceration. On Monday I will skip my usual opening presentation, except to briefly summarize the issue for any new members that might not have read the background materials.
Linda, with her many years of experience as a defense attorney, will then have the floor.
DISCUSSION QUESTIONS –
- How big is this problem and what makes it a problem?
- What caused it? Whose “fault” is it? Was anybody thinking of this eventuality 30 or 20 or 10 years ago?
- Solutions: What’s being tried, including by the USG and in California?
How are those going? If not well, why, and what else should be done?
- Mass incarceration: Is the elderly prisoner problem another one of the consequences of America’s disastrous mass incarceration experiment? Or, is it a sad but inevitable consequence of our vast but in-the-past crime wave?
- CJ reform: Is there any hope for federal criminal justice reform now that Trump is president and the GOP controls USG?
SUGGESTED BACKGROUND READING –
- What caused our 20th century violent crime wave and why did it end? Recommended.
- [Late update] The huge affect lead poisoning from gasoline and paint played in the 1960s-1990 wave. Not a joke nor sloppy pop-science.
- Our huge aging prisoner crisis. Recommended best summary, but sorry for the annoying multiple automatic audio plays.
- The human costs are high everywhere. WashPost.
- But, and recommended: Releasing aging violent offenders is controversial even in California.
- Optional, very detailed studies:
- Our mass incarceration problem more broadly:
NEXT WEEK: White male privilege – How real? How important?
This one was Bruce idea, as a kind of follow-up to our 2015 meeting on the Founders’ view of government powers and in expectation that Hillary Clinton would be elected president. Now, of course, President Trump will fill the Supreme Court seat that congressional Republicans stole by refusing to fill Justice Scalia’s vacant seat for a year. Funny, but I can’t find the passage in the Constitution that allows the Party of strict constructionists and originalism to do this.
At any rate, no shift away from the long, conservative arc of constitutional law is going to happen in the next decade. Quite the opposite. That list of possible SCOTUS appointees that Trump issued during the campaign came straight from the Heritage Foundation and the Federalist Society. An ultra-conservative constitutional restoration is on the launching pad, in the lower courts as well as SCOTUS.
Nevertheless, understanding progressive views (there are more than one) of constitutional interpretation is still relevant, for several reasons. First, presidents usually find a way to appoint federal judges that share their highest constitutional priorities. For example, the liberal Obama appointed judges that agreed with his expansive view of executive power in anti-terrorism matters. Donald Trump is an authoritarian figure unmatched in American history and he might try to stack the judiciary with cronies that place loyalty to him above ell else. If Trump does this and the GOP refuses to stand up to him, progressives and their living Constitutionalism will have to bear the full weight of opposition.
Second, being in the wilderness sharpens the mind. Over the next four years the Democrats must decide whether and how to revamp their message. A lot of people feel that the New Coke must include a version of constitutional interpretation that can compete with the simplistic but effective “original intent” and “obey the written Constitution” marketing slogan of the Right. Lastly, esoteric matters of law aside, the public is on progressives’ side on most major constitutional issues. They do not believe that Medicare, federal aid to education, and Social Security are unconstitutional. They don’t want Roe overturned or the last limits on corporate campaign contributions to be swept away.
Unfortunately, the progressive POV on constitutional law does not easily fit on a bumper sticker. The Left views the Constitution as a “living document,” one that laid down timeless principles but that still must be interpreted non-mechanically in order to apply it to the today’s real world. But, beyond that commonality, progressive experts differ on specific methods and priorities. There are competing camps with catchy names like “ordered liberty,” “progressive originalism,” “democratic constitutionalism,” and others.
I’m not qualified nor interested enough to explain these nuances. But, I do know a bit. I will open our meeting on Monday with the basic ideas behind progressive constitutional interpretation as I understand them. Then, we can talk.
- Originalism: Why do progressives consider it unworkable and even kind of fraudulent?
- Basic liberal stance: Why do progressives say the Founders intended the Constitution to be a “living document” that must be interpreted for modern times?
- Rules for deciding: Okay, but how? What rules/priorities do progressives think we should use for interpretation? Original meaning, precedent, societal consensus, modern values, outcomes? Can these add up to a coherent philosophy?
- Differences/Labels: What are the biggest disagreements among progressives on this stuff and how do they end up as “democratic constitutionalism, “ordered liberty,” “New Textualism,” etc.
- Future: How will progressive react to the coming conservative constitutional revolution? Will they find any common ground with (some) Republicans?
SUGGESTED BACKGROUND READING –
- Why constitutional theory should matter, including to progressives. Recommended.
What might have been and what will be –
- How a liberal SCOTUS would have changed America.
- Trump’s SCOTUS will be radical — if he gets a 2nd pick. Recommended
- Some conservatives are afraid, too.
Critique of Conservative Methods –
- It is wrong to think Constitution not meant to be flexible. Easy read, recommended.
- A measured critique of originalism and defense of a living constitution.
- A conservative rebuttal.
Progressive constitutional interpretation –
- The Founders intended a flexible, non-dogmatic Constitution. Easy read.
- A progressive Constitution. Harder, recommended.
- More: The “Framers’ Constitution” is progressive. It is a “Distributive Constitution.”
[Update: I should have linked to the New Textualism – the best of the 3 articles.]
NEXT WEEK: Are we living in the “Asian Century?”
Breaking the law in order to highlight its injustice (one, but not the only, definition of civil disobedience) is all around us these days. In our crowded media environment, many individual acts or organized campaigns of civil disobedience don’t break through to the mass media. But, some that did in a big way are:
- Black Lives Matter;
- Occupy Wall Street;
- Protestors disrupting Donald Trump rallies;
- Cliven Bundy, et. al., facing down authorities in Nevada and Oregon to protest federal govt land policies;
- Local government officials (like Kim Davis in Kentucky) refusing to sign same sex marriage licenses;
- Edward Snowden leaking classified information on NSA eavesdropping programs.
Some of thee efforts involved many legal as well as illegal acts, of course, and some have achieved a lot more than just publicity. Black Lives Matter has had a major impact on the Democratic presidential primary and renewed efforts to reform policing. (We will discuss police reform and oversight on June 8.) The anti-Trump protestors have influenced the Republican presidential primary process, just maybe not in the way they intended. Others either fizzled out (Bundy) or just need more time to grow support (Snowden, perhaps).
The perpetrators of all of these illegal acts done for a higher purpose routinely cite as their inspirations famous civil disobedience actions of the past by abolitionists, civil and women’s rights activists, etc. As the author of one recent book on the subject puts it, civil disobedience is an American Tradition.
Now, I believe we may be entering a new era of political activism. Why is a subject for another days – many, actually. But I see this new era as arising from widespread public discontent with our political system and parties, income stagnation, and rapid demographic and cultural change. I think civil disobedience will play a heightened role in our politics because of the Internet and social media. Even if I’m wrong, the recent big protest movements cited above are well worth a meeting.
My idea here is for us to see if we can identify some universal principles on when civil disobedience might be morally and politically justifiable. We’ll look to our own values and our current political and social environment, sure. But we also can use our history, others’ histories (e.g., from Gandhi all the way to terrorism!), religion, and philosophy. The latter two have been arguing about when civil disobedience is and is not justified for generations. There are many interesting questions we can pose. For example…
DISCUSSION QUESTIONS –
- DEFINITION: What is “civil disobedience [CD]?” How does it differ from passive resistance or non-cooperation?
a. Must CD be non-violent? What is non-violence, anyway?
b. When does CD become something else, like insurrection?
- CURRENT: What major CD movements/acts are occurring right now?
a. How have they been justified by their perpetrators?
b. Are they helping or hindering budding political movements?
- PAST: Are there any major lessons from U.S. history on when civil disobedience is justified? Do all Americans agree on them?
a. Has it all depended on the object of the disobedience; i.e., on the morality of the goal? What else has mattered?
b. Has CD ever worked by itself, unattached to a big political movement?
- RELIGION and PHILOSOPHY: What do they say about civil disobedience? When is it justified and within what limits?
- LAW/GOVT/YOU/ME: Should the law treat acts of civil disobedience differently from ordinary law-breaking?
a. What about when there is no democracy or no way to redress grievances?
b. Is CD ever morally or religiously required?
SUGGESTED BACKGROUND READING –
Movements involving civil disobedience [CD]:
- Black Lives Matter has hugely influenced the Democratic Party. Recommended.
- Mass arrests of anti-Citizens United protestors happened just last week at the U.S. capitol building.
- Bundy stand-offs: What were they all about?
- Other recent conservative uses of civil disobedience. Recommended.
- MLK’s Letter from a Birmingham jail, 1963. Highly recommended because notice how he justifies taking direct action.
- Still, civil disobedience involves many thorny issues. Recommended.
- Civil disobedience in philosophy. A hard read from the Stanford Encyclopedia of Philosophy.
Problem with + limits to civil disobedience:
- The public usually sides against law-breakers, per the “Bigger Asshole” axiom. Recommended
- Targeted vs. untargeted civil disobedience.
- Crowds are disinhibiting and riots lead to backlashes.
Building grass roots political movements
Next Week: Thomas Jefferson and His Legacy. Jim Z. will guide us!
The Supreme Court was always going to be the big prize of the 2016 election. Justice Antonin Scalia’s death on February 13, 2016, just raised the already high stakes to an unequaled plateau because we now know the Court’s 20+ year-long conservative ideological majority hangs in the balance.
I originally scheduled this topic to discuss the string of 5-4 conservative decisions on major cases that everybody expected to come down the pike in April to June. These cases included ones on Obama’s climate regulations, the 1-person-1-vote redistricting standard, union rights, abortion and contraception access, affirmative action, and the death penalty. Oops. Now, those cases either will be reargued next term, remanded to lower courts, or let stand because SCOTUS is tied.
So, I think it might be fun to re-purpose this meeting to look more broadly at the relationship between the Supreme Court and elections – and public opinion. We kind of did this 2012 (Whose side is SCOTUS on?). But, that was more about how public opinion influences SCOTUS and how often the Court has defied majority public opinion to make unpopular rulings.
On Monday, I’d like us to begin by asking about the reverse relationship: How much does the public care about SCOTUS and how do high-profile Supreme Court issues influence voting? As the first link or two below explain, typically SCOTUS is not a very visible issue in our elections except for political activists, the most well-informed voters, and the economic interests intimately affected by Court decisions. But, given the historic moment, it might be different this time. Especially with presidential candidates running on issues that are before the Court but in limbo because of Scalia’s death, like Ted Cruz running on abortion and immigration and Bernie Sanders demanding that the next SCOTUS justice commit to overturn Citizens United.
I will give a short introduction to our meeting that focuses on the public’s view of the Supreme Court and whether/why that matters. Then, we can discuss if that is changing.
DISCUSSION QUESTIONS –
- Stakes: How high are the stakes in this election for the future of SCOTUS and American law and policy? Re:
- High-profile cases next term?
- Big areas of constitutional law, like civil rights, civil liberties, presidential power, natl security, voting rights and campaign finance, reproductive rights, labor unions, federalism, etc.?
- Obama’s achievements (many are reversible by SCOTUS)?
- Lower federal courts?
- Is a “constitutional revolution,” either progressive or conservative, at stake?
- History: Traditionally, how big an issue is SCOTUS in voters’ minds? Which voters care the most and why?
- 2016 Rhetoric: What are the candidates saying about SCOTUS stakes and who is the rhetoric aimed at (voters, activists, Media, donors)?
- 2016 Receptivity: Will it have any effect – how will we know? Will it raise expectations that have to be met?
- 2017 and beyond:
- What kinds of justices would Hillary/Bernie or Cruz/Trump/other nominate? Any chance of picking a moderate?
- Will GOP refuse any nominee, keeping a 4-4 Court?
- How would your answers to Q1/ a-e be different with a GOP or a Democratic Supreme Court?
SUGGESTED BACKGROUND READING –
- Written before Scalia’s death:
- Scalia’s death already has ended the conservative SCOTUS majority. Recommended.
- And it rockets the Court into a mainstream campaign issue in 2016. Recommended.
- [Very optional – Scalia’s legacy
- If a Democrat wins White House:
- If a Republican wins White House:
- 2017 and beyond: Will extreme partisanship cause the Supreme Court to just disappear? Recommended.
Next Week: When is civil disobedience justified?
I’ve mentioned many times that in my view the modern conservative political program can be (simplistically, of course) described as in three words: Cut, deregulate, and privatize. Cut taxes, especially on investment. Deregulate industry, especially President Obamas new ones on Big Finance and the health care industries. Privatize public services at all levels of government. This week John S. wants us to talk about a little-understood but very important part of the last part of this three-pronged agenda: The growing privatization of our legal system, especially of the right to sue.
We’re all familiar with the growing private control over the making of our laws, due to lobbying and loosened campaign finance rules. John’s idea should spur us to talk about the increasing private control over the enforcement of our laws. This is true of both civil and criminal law.
In civil law, tort reform (a major conservative political priority) and the now-ubiquitous use by big corporations of binding arbitration clauses in consumer agreements and even employment contracts has severely limited your ability to sue for damages when you are wronged by a big company. Use of class action lawsuits, another check on corporate power, also have been curtailed. I suppose you also could add the rise of secretive investor dispute settlement panels in international trade agreements to this list, since they basically privatize a part of what used to be strictly government-to-government trade law enforcement.
In criminal law, we have privately-owned and operated prisons housing almost 10 percent of all prisoners, and outsourced probation enforcement. The incentives built into this privatizing of legal punishments can lead to sometimes disastrous results (see links). I’m sure I’m missing some of the ways our penal system has been turned over to private contractors.
Finally, and analogous to what is happening with corporations, we have seen our right to sue government when it harms us restricted. Government officials have always had qualified immunity from lawsuits when they are performing their statutorily-mandated duties. But, recent court decision have expanded this type of immunity, as well.
I don’t want to exaggerate these trends. Our entire legal system has not been handed over to corporations and private interests. Yet. Nor, of course, should they all be automatically condemned nor laid at the feet of political conservatives. The public good may benefit from some of these developments. But, I think you will learn some unsettling things about the bowels of our legal system on Monday.
Since I’m low on time this weekend, my research (and the readings, below) will focus on the binding arbitration and class action issues. My intro on Monday night will emphasize them. In addition, you may want to read one of the articles on the consequences of state/local governments privatizing the enforcement of probation.
SUGGESTED BACKGROUND READING –
- Q: Why do Americans sue so much?
A: Many reasons, including that – unlike other countries – we rely on litigation to enforce govt regulation.
- Civil law privatization:
- Criminal law privatization:
Next Week: What Are the Sources of Islamist Radicalism?
Happy Religious Freedom Day! January 16 commemorates the adoption in 1786 of Thomas Jefferson’s Virginia Statute of Religious Freedom, a pioneering law protecting religious faith and practice. Since then, the contours of and limits to religious liberty in our country have, like all other constitutional rights, evolved.
Since the at least the 1960s, state laws often have allowed people to claim an exemption from some secular laws in some circumstances based on their personal religious objection. Conscience clauses are common in education (opt-outs for vaccinations and sex education), health care (refusing to participate in abortions), and in other areas.
I had us discuss this topic in 2013 because conservatives had begun a political campaign to expand the scope of what they term ‘religious freedom” laws into new areas, like marriage equality and LGBT rights. I timed our meeting to coincide with oral arguments in the Burwell vs. Hobby Lobby” Supreme Court case. In that case, the owners of a big craft chain store argued that their first amendment religious liberty included the right to disobey the Obamacare mandate to cover all effective forms of contraception in its employee health insurance plan.
A few months after we met, SCOTUS ruled in Hobby Lobby’s favor. The Court’s reasoning was…innovative, to say the least. It said that the religious freedom of the companies’ owners extends through the corporate veil, all the way to the earned benefits of its employees. Hobby Lobby had the first amendment right, the Court said, to dictate which forms of contraception its health care plan would pay for, solely on the basis of its owners’ personal religious beliefs. Progressives immediately grew suspicious that SCOTUS had opened the door to new corporate abuses of power and/or new ways for conservatives to ignore law they didn’t like.
Don’t worry, said the Court. This ruling really is a narrow one. It applies only to “closely-held” companies and only to the specific forms of birth control that Hobby Lobby’s owners believed were immoral. If in the future other claimants tried to use this decision to make more outlandish religious claims – outlandish in the Court’s eyes, I guess – SCOTUS would not be receptive.
Well, guess what? In March 2016, SCOTUS will hear a new case in which a religious non-profit employer wants out of the Obamacare contraception mandate, too. The Court might use its ruling to open the religious conscience exemption door even wider – perhaps much wider. And it’s not just the Supreme Court. Since Hobby Lobby, congressional conservatives have introduced the First Amendment Defense Act and the Marriage and Religious Freedom Act, both designed to protect conscientious religious objectors to federal LGBT laws. Ted Cruz and Marco Rubio cosponsored both these bills and Donald Trump just said he would sign the latter. On the state level, GOP-controlled governments have tried to enact similar laws.
You see my motive for this topic revisit. Maybe all of these efforts to expand religious conscience laws to protect lost culture war battles will fade away or be contained by ether the courts or public opinion. (Maybe some are even sensible – we shouldn’t dismiss the whole idea of expanding conscience clauses out of hand, IMO). But, I doubt it. I think conservatives’ conscience clause/ religious freedom movement is major a new frontier of our 21st century culture wars.
On Monday, I’ll open our meeting with a little more info on what conservatives have planned in this area and a bit of the reasoning supporters and opponents use.
Discussion Questions –
- What is a religious conscience clause and what is its moral and constitutional justification? Historically, what were their limits?
- How did (or, did) the Hobby Lobby ruling change the limits of religious conscience?
- How do conservatives want to expand this part of the law? Do their ideas have merit?
- Is DavidG wrong: Are conservatives not going to keep the pedal to the metal on this issue?
- Are there other ways to split the baby on these tough moral questions; e.g., more federalism, or defining the limits to religious exemptions in a single, federal law?
SUGGESTED BACKGROUND READING –
- A short history of use of these types of laws in the USA. Recommended
- What’s coming in 2016:
- What progressives fear/want:
- Religious conscience movement is our new culture war battlefield. The article that prompted this topic idea.
- GOP-run states are passing laws that allow people to claim exemptions from a wide range of laws they don’t like on the basis of their religious beliefs. Recommended.
- What conservatives fear/want:
Next Week: Solutions to California’s Water Woes (yeah, yeah, it’s raining).
Yesterday (9/17/15) was national Constitution Day, so I thought Monday might be a good date to discuss this idea of Bruce’s. Natural rights may seem like an arcane philosophical matter. But, they are a huge deal to many conservatives. The existence and implications of natural rights is one of the main (although not the only) intellectual justifications for political conservativism. And, a moral foundation. And a secret ingredient for constitutional interpretation, one that renders much of the 20th century’s activist government literally illegal.
In a nutshell, natural rights are a priori human rights, the basic freedoms that God or nature allegedly endows us with prior to any political arrangements we create. These rights are indefeasible: A political system based on natural law principles may not legitimately take them away from us except in narrow, exceptional circumstances. Conservatives that anchor themselves in natural law/natural rights, I’ve observed, tend towards libertarianism, believing that the natural right of life, liberty, and property are pretty much the only freedoms that the federal government must protect. Congress can make “positive law” that advances other goals, but only in very limited circumstances. The pursuit of happiness? To most conservatives I read and know, it’s something we’re entitled to chase after, but only with the protections of the Bill of Rights’ negative liberties to support us.
A natural rights-based philosophy, IMO, serves two other purposes, politically. First, arguments based on natural rights seem to be, well, natural and common sense, and who could be against nature? Second, natural rights can be conceived of as either God-given or derived from nature or reason. This helps to marry together religious conservatives and more secular-minded libertarian ones. See, since natural rights are directly referenced in the Declaration of Independence (“inalienable rights”) and the Declaration also mentions God, then, if you’re a Declarationist, you can say that the Constitution has a fundamentally religious purpose even though God is absent from the Constitution’s text..
As for me, I’ve never quite figured out several things about natural rights. Such as how we’re supposed to be dead certain what they are and where they stop. Also, it’s unclear to me why any set of natural rights has to be eternally unchanging. Can’t our conception of fundamental human rights that need protecting evolve as our societies evolve?. But, YMMV.
Below are some readings on natural rights and their political ramifications. Most are by conservative writers that put these rights at the center of our political system, plus a few progressive rebuttals. I also separated out some more complex articles on constitutional doctrine and legal history for the true masochists among us (you know who you are.).
I’ll open Monday’s meeting with a short summary of the issue of natural rights and then give Bruce a chance to do his thing.
SUGGESTED BACKGROUND READING –
- What are natural rights and do they exist?
- Why are natural rights so important to conservatives?
- For many: They are God-given, putting God front and center in U.S. constitutional and political thought.
- For most: If the Founders only intended for our govt to protect a narrow set of natural rights, then progressive expansion of govt is literally unconstitutional. Recommended Longer, slightly obnoxious treatment here.
- Progressive rebuttals:
- More complex/detailed materials:
Next Week: Public Ignorance as a political problem. Donald, here we come!
This week we have an interesting topic from Linda, our defense attorney. I know little about the issue of wrongful criminal convictions. Like everybody else, I read about them on occasion. But, only the really egregious ones make the national news, like the recent case of a man freed after serving 34 years for a rape/murder he did not commit.
Fortunately for us (and for at least a few of the falsely imprisoned), a number of organizations are dedicated to exonerating such people, notably The Innocence Project and Wrongfulconvictions.org. Their heartbreaking cases, or even a quick Googling of the topic, suggests the scale of this problem could be larger than most people imagine. It’s not just murders and rapes and pre-DNA convictions. Wrongful convictions may be fairly common for lesser crimes, like assaults or burglaries. These miscarriages of justice have many causes, including:
- Bad evidence: Shaky eyewitnesses, false confessions, and bad forensic science;
- Police and prosecutorial misconduct: Some accidental, good-faith mistakes; some deliberate and malicious;
- Incompetent defenses: Bad defense attorneys and underfunded and overworked public defender systems.
And those are just before the wrongful convictions. After a person goes down for a crime, the obstacles to getting his/her case reexamined are enormous. The burden of proof essentially transfers onto the convicted and it’s a large burden (I think). As I’ll discuss in my brief opening, one reason it’s so hard is that being innocent is no excuse. I’m serious. Generally under the law, a convicted criminal cannot be exonerated unless he/she can demonstrate (from prison, often!) that the process under which they were condemned violated their due process rights. If they got a “fair” trial but a wrong outcome, too bad. Plus, 95% of criminals plead guilty in a plea bargain. So, there is no trial at all to question, just the actions of the police and prosecutors, who, as we’ve all seen with recent killings of unarmed citizens, almost always get the benefit of any doubt..
Only a few links this week – Some broad overviews of the problem, plus a little bit on causes and ways to improve the system. My big question on this topic is the last one, below: What does this problem say about our legal system as a whole? Are wrongful convictions just the tragic but infrequent and inevitable “false positives” generated by a gigantic criminal justice system in a very high-crime country? Or, are they yet another manifestation of a rotten criminal justice system, intrinsically connected to mass incarceration, police abuse, etc.?
Hey, not every problem has to be connected to much bigger and long-festering systemic problems. But, where there is the former, there is usually the latter.
Discussion Questions –
- Frequency. What do we know about the problem of wrongful criminal conviction? How many are we sure have happened versus estimate? Is the problem a large or small part of American justice?
- Who/When: Who gets wrongfully convicted – Which types of crimes and/or defendants and/or victims and/or locales?
- Causes. Why does this happen? Is it individual errors or systemic problems?
- Solutions. What remedies have been suggested? Which ones have been implemented and by whom? Why/Why not? Results?
- Disease or symptom? What does this problem say about our criminal justice system? Tip of the iceberg of injustice? Small, isolated problem?
SUGGESTED BACKGROUND READING –
- Overview short. Recommended
- Overview, longer and better. Recommended.
- More on the 6 major causes of wrongful convictions, from the Innocence Project. Another study found 10 causes.
- One big cause, IMO = Prosecutors have too much power! Recommended. More on this from both sides’ POV.
Next Week: Is the U.S. financial sector finally tamed?