Showing posts with label Justice. Show all posts
Showing posts with label Justice. Show all posts
Wednesday, March 21, 2012
Monday, September 26, 2011
The Crime of Punishment
The late Bill Stuntz was America’s leading thinker on criminal justice—and its hardest to categorize.
Lincoln Caplan
The black homicide rate across the nation is six times that of the white rate. Chicago’s Washington Square neighborhood is poor and close to 100 percent black. The city’s Hyde Park neighborhood is affluent and mostly white. The homicide rate in the first is 26 times that of the second.
The most compelling explanation for the different crime patterns for blacks and whites is the effect of the criminal justice system’s breakdown on poor young black men, who have continued to commit crimes at a high rate, including violent ones, especially against blacks, and who regard the system as dramatically unfair and unworthy of their respect. The rate of imprisonment among white men is the highest it has been in American history, yet the rate is seven times higher among black men.
America’s prison system is now studied largely because of its failure. The prison population is unsustainably high—petty offenders are locked away with hard cases, overcrowding makes conditions dangerous and unhealthy, and financial costs to states are through the roof. The last time the country significantly reduced them, however, in the 1960s and early 1970s, the rate of crime skyrocketed. Neither option is acceptable. So what do we do?
In his posthumously published book, The Collapse of American Criminal Justice, William Stuntz argues that reform today should involve putting more control over decisions about what and who should be punished—and for how long—in the hands of neighborhoods most hurt by crime and decimated by punishment. It should, he writes, involve many more cops on the street and many fewer convicts in prison.
But the book is less a blueprint for how to make things right than an explanation of what went wrong over the past century. Its value comes from seeing American criminal justice whole, in an elaborate analysis of a complex system, and challenging the theories of retribution and deterrence that lead to an emphasis on punishment and that have dominated thinking about the field for the past generation.
“Today,” Stuntz explains, “our cities are considerably more violent than before the great crime wave of the twentieth century’s second half, yet the nation’s imprisonment rate is quintuple the rate before that crime wave began. If punishment deters crime, we seem to be getting much less deterrent bang for the imprisonment buck than we once did. Add it all up, and the picture is quite different than the conventional wisdom allows.”
Stuntz’s thesis is that the misrule of politics has replaced the rule of law, with a ratchet of ever-expanding criminal laws giving boundless discretion to police and prosecutors, leading to a system that wrongly punishes too many poor young black men. When the law gives that much discretion, he writes, it stops functioning as law and instead becomes an assertion of power. The recent decline in crime is less a sign of success than of pathology. The encouraging numbers are misleading. They conceal devastating failure.
William Stuntz was one of the most influential and revered legal scholars of his generation, by acclamation the country’s leading thinker about criminal justice. His 25 years as a scholar, first as a law professor at the University of Virginia, then at Harvard, began when crime was a highly politicized issue and ended (tragically early—he died of cancer at the age of 52 in March) when crime had seemingly ceased to be an issue at all.
He developed an original, sweeping, and brilliant understanding of his field, which he sought to synthesize in this work. Three highly respected legal scholars to whom his book is dedicated—Carol Steiker and Michael Klarman of Harvard Law School and Daniel Richman of Columbia Law School—shepherded the essentially finished volume through production and into print after his death. While he co-authored a shelf full of respected textbooks about criminal law and criminal procedure, this is his only book for a general readership. It is his masterwork. The book is written in direct, energetic, and forceful prose, without stinting on nuance. It is a form of purposeful history, with close analyses of Supreme Court cases and doctrine; crime data by race, class, and geography; the workings of American politics at the national, state, and local levels; the interplay of legal, political, economic, and social forces; and attention to seminal documents of law and governance, especially the Constitution and its Bill of Rights.
The Collapse of American Criminal Justice is at once a far-reaching indictment and a vision tinged with hope. Stuntz was concerned with how to make sure that the criminal justice system charges and convicts those who deserve punishment while reducing the share of people caught in it who are innocent. He was convinced that “criminal punishment is both too severe and too frequent” and that “legal condemnation is a necessary but terrible thing—to be used sparingly, not promiscuously.” His biggest idea is that criminal justice can only be understood—by non-experts as well as experts—through a grasp of the interactions among its major elements. By showing that the division between criminal law (the elements of crime the government must prove to convict a defendant) and criminal procedure (the steps a police officer must follow to interrogate a suspect) that is respected by most scholars is in fact artificial and misleading, he demonstrated the benefits of approaching the field as a whole.
The history of criminal procedure, he showed, was “not really about procedure at all but about substantive issues, about what conduct the government should and should not be able to punish.” The most important change in this area came in Miranda v. Arizona, the landmark 1966 ruling requiring police, under the Constitution’s guarantee against self-incrimination, to give suspects taken into custody warnings about their right to remain silent and to call a lawyer, because that intimidating situation is likely to make a suspect feel he must talk. The purpose of Miranda was to give every defendant the opportunity to protect himself in the criminal justice system, not just wealthy suspects with access to skilled lawyers who could help make a case that a confession was coerced and therefore involuntary.
But the effect of Miranda was the opposite, Stuntz contended: The new rules gave suspects who could afford a skilled lawyer a “right to avoid police questioning altogether.” That was about one-fourth of criminal suspects. As for the other three-quarters, the warnings afforded few of them protection, because they didn’t understand what the warnings meant or, if they did, had no access to anyone who could enforce them. As long as the police could show they gave the warnings to the other three-quarters, they easily induced most suspects to waive their rights. Stuntz’s criticism underscored that, without provision of criminal defense lawyers for the poor, Miranda had much less beneficial impact than it promised.
Stuntz was a registered Republican and considered himself a conservative, and his reputation as such was buttressed by some truly conservative positions (for instance, he favored forms of profiling after the September 11 attacks). But it was more important to Stuntz that he appeal to both liberals and conservatives than that he be identified as either. The distinctiveness of his outlook was reinforced by his keenness to make his evangelical Christian faith part of his identity as a scholar. His best-known article about the role of Christian ideas in law suggests that Christianity’s most significant lesson in the face of the “arrogance” of contemporary legal theory is the faith’s “humility” about how hard it is to find definite answers to fundamental questions. His humility sometimes gave his writing the tone of an elegy.
Stuntz writes, “Discretion and discrimination travel together.” The percentage of adults who are black, white, and Latino using illegal drugs is roughly the same (10 percent, 9 percent, and 8 percent, respectively), but blacks are three times more likely than Latinos to do prison time for drug crimes and nine times more likely than whites. Why? The misrule of politics, according to Stuntz. Specifically, the misrule results from suburban voters in counties having a lot of say in who gets elected as prosecutors in the urban areas where serious crime is concentrated. As Stuntz writes, prosecutors “are usually elected at the county level” and “counties that include major cities have a much higher percentage of suburban voters than in the past.” Think here, for example, of Fulton County, Georgia, or of Wayne County, Michigan, both so much larger than Atlanta and Detroit, respectively, that they even include some rural stretches. In other words, it is voters for whom crime is largely an abstract problem who exercise sway, while residents for whom the problem is real have less power.
The disappearance of the jury trial symbolizes this shift. Almost all felony criminal convictions today—96 percent—come from guilty pleas obtained by prosecutors elected with the support of suburban voters, not from verdicts reached by juries drawn from residents in areas where crime is concentrated. The system, in Stuntz’s words, has become an “arbitrary, discriminatory, and punitive beast,” which is undemocratic in vesting decisions about punishment in those who aren’t part of the community where those being punished live. Stuntz’s main remedies for this include putting more cops on the street, making more lawyers available to represent criminal defendants, letting local rules about sentencing prevail, and shifting responsibility between local and state governments for who pays for local police and state prisons.
More cops would mean fewer prisoners and more robust local democracy. More lawyers for criminal defendants would mean better-prepared cases, fewer coerced pleas, and more reliable outcomes. Letting local rules about sentencing prevail would reduce the severity and the racial disparity in sentencing, and, with judges presiding over this phase, reduce the power of prosecutors. Shifting responsibility for payment, by having local governments pay a larger share of prison costs and a smaller share of local police costs, would give them an incentive to sentence fewer prisoners—and remove a disincentive from hiring more cops.
Stuntz was troubled by “institutional design and incentives” in criminal law and politics that push toward ever harsher rules and sentences. Power over criminal law is allocated to the three branches of government—the legislature makes it, the executive branch enforces it, and the judiciary interprets it—but they are not checks on one another in this sphere. In fact, legislators and the executive branch’s prosecutors both benefit from “more and broader crimes”: Legislators get more power when they define crimes more broadly because they reduce the role of judges in deciding who is guilty; and prosecutors have more power because they have more discretion about what and how to prosecute. As a result, legislators and prosecutors tacitly cooperate with each other, leading to both more law and less: more on the books, and less on the street, in the sense that the laws are so broad the police and prosecutors get to decide whom to go after and find guilty. Those decisions are about power. In the “rule of too much law,” Stuntz advises, “too much law amounts to no law at all.”
His solution to this set of problems is to replace the vicious cycle that creates them with a virtuous cycle based on cultivating a relationship between those who break the law (or are tempted to) and those who enforce it. For most of the twentieth century in the Northeast and Midwest, the ratio of police officers to prison inmates was two to one. Today, it is less than one to two. “More than any other statistic,” Stuntz writes, “that one captures what is most wrong with American criminal justice.” More cops mean more deterrence. More deterrence means fewer arrests and fewer convictions. In the 1990s, New York City had the biggest drop in urban crime during the decade. It also had the biggest increase in its police force.
Another important component would be fewer prisoners. This would require reducing the severity of sentencing, which is now “more punitive than Russia’s,” reducing the discrimination that contributes to blacks outnumbering whites among prisoners, and reducing “excessive prosecutorial power”—which is “unchecked by law and, given its invisibility, barely checked by politics.” And too much power for prosecutors doesn’t mean there are enough of them: Stuntz calls for many more, so there are more lawyers to litigate cases and the pressure on them to obtain plea bargains is alleviated. That would also require more money for public defenders to represent defendants in court.
A more drastic aspect of his reform vision would be sweeping changes in criminal laws—defining more crimes vaguely so courts would need to resort to jury trials to decide who was guilty. This would excuse from liability for the most serious offenses the least guilty members of a group of criminals and would even allow some guilty defendants to claim that, though their conduct fit the definition of a crime, it wasn’t so “wrongful” that it merited punishment. This would mean “constitutionaliz[ing]” much of basic criminal law, by asking courts to define its boundaries instead of legislators and prosecutors—and giving courts more power when many perceive them to have too much power already.
This unlikely element of his vision is also the most inventive. Stuntz contends that the Warren Court, instead of fixating on procedures addressed in the Bill of Rights, could have focused on equality as called for in the Fourteenth Amendment. In case after case where it settled on a procedural solution, the Court could have insisted that a black defendant who was plainly treated differently and less respectfully than a white defendant be guaranteed the equal protection of the laws. He called for the Warren Court to do what its conservative critics have usually attacked it for: to take an approach to constitutional reform that was “less legally grounded, more intuitive than lawlike.” This would surely have been lambasted as extreme judicial activism. But Stuntz believed that the Warren Court did not go far enough. He was a conservative who criticized the liberal Warren Court for its conservatism because he was convinced it would have been better for the justices to take a radical path.
The United States of the years right after World War II is unrecognizable in major ways because of changes wrought by the Warren Court. Landmark decisions it rendered about racial equality, school prayer, voting rights, and freedom of the press, as well as criminal justice, made our democracy more inclusive, more representative, more tolerant, and better informed, not to mention fairer to people accused of crimes.
But Stuntz wanted more. His hunger for more justice and mercy and, as a result, less crime and punishment made his work great. In this brave book, as contrarian as it is utopian, he constructs a powerful explanation about the vast and costly failure of the American criminal justice system and why the quest to reform it must be a high priority. He left an inspiring model of how.
Lincoln Caplan
By William Stuntz • Harvard University Press • 2011 • 408 pages
Crime began to plummet in the United
States more than 15 years ago, defying all predictions. It did so for
nearly a decade. It happened in every part of the country and in every
category of crime. While the rate of decline has leveled off in recent
years, to many this social achievement has meant that the country need
not worry about crime anymore: The problem has been solved. That view is
wrong. In reality, the problem simply exists in two places most
Americans (and the media) don’t often bother to look: in crime-ridden
sections of cities where minorities live, and in the overcrowded prison
system that gives America the world’s highest rate of incarceration. The
good news masks an ever-worsening tragedy in criminal justice.The black homicide rate across the nation is six times that of the white rate. Chicago’s Washington Square neighborhood is poor and close to 100 percent black. The city’s Hyde Park neighborhood is affluent and mostly white. The homicide rate in the first is 26 times that of the second.
The most compelling explanation for the different crime patterns for blacks and whites is the effect of the criminal justice system’s breakdown on poor young black men, who have continued to commit crimes at a high rate, including violent ones, especially against blacks, and who regard the system as dramatically unfair and unworthy of their respect. The rate of imprisonment among white men is the highest it has been in American history, yet the rate is seven times higher among black men.
America’s prison system is now studied largely because of its failure. The prison population is unsustainably high—petty offenders are locked away with hard cases, overcrowding makes conditions dangerous and unhealthy, and financial costs to states are through the roof. The last time the country significantly reduced them, however, in the 1960s and early 1970s, the rate of crime skyrocketed. Neither option is acceptable. So what do we do?
In his posthumously published book, The Collapse of American Criminal Justice, William Stuntz argues that reform today should involve putting more control over decisions about what and who should be punished—and for how long—in the hands of neighborhoods most hurt by crime and decimated by punishment. It should, he writes, involve many more cops on the street and many fewer convicts in prison.
But the book is less a blueprint for how to make things right than an explanation of what went wrong over the past century. Its value comes from seeing American criminal justice whole, in an elaborate analysis of a complex system, and challenging the theories of retribution and deterrence that lead to an emphasis on punishment and that have dominated thinking about the field for the past generation.
“Today,” Stuntz explains, “our cities are considerably more violent than before the great crime wave of the twentieth century’s second half, yet the nation’s imprisonment rate is quintuple the rate before that crime wave began. If punishment deters crime, we seem to be getting much less deterrent bang for the imprisonment buck than we once did. Add it all up, and the picture is quite different than the conventional wisdom allows.”
Stuntz’s thesis is that the misrule of politics has replaced the rule of law, with a ratchet of ever-expanding criminal laws giving boundless discretion to police and prosecutors, leading to a system that wrongly punishes too many poor young black men. When the law gives that much discretion, he writes, it stops functioning as law and instead becomes an assertion of power. The recent decline in crime is less a sign of success than of pathology. The encouraging numbers are misleading. They conceal devastating failure.
William Stuntz was one of the most influential and revered legal scholars of his generation, by acclamation the country’s leading thinker about criminal justice. His 25 years as a scholar, first as a law professor at the University of Virginia, then at Harvard, began when crime was a highly politicized issue and ended (tragically early—he died of cancer at the age of 52 in March) when crime had seemingly ceased to be an issue at all.
He developed an original, sweeping, and brilliant understanding of his field, which he sought to synthesize in this work. Three highly respected legal scholars to whom his book is dedicated—Carol Steiker and Michael Klarman of Harvard Law School and Daniel Richman of Columbia Law School—shepherded the essentially finished volume through production and into print after his death. While he co-authored a shelf full of respected textbooks about criminal law and criminal procedure, this is his only book for a general readership. It is his masterwork. The book is written in direct, energetic, and forceful prose, without stinting on nuance. It is a form of purposeful history, with close analyses of Supreme Court cases and doctrine; crime data by race, class, and geography; the workings of American politics at the national, state, and local levels; the interplay of legal, political, economic, and social forces; and attention to seminal documents of law and governance, especially the Constitution and its Bill of Rights.
The Collapse of American Criminal Justice is at once a far-reaching indictment and a vision tinged with hope. Stuntz was concerned with how to make sure that the criminal justice system charges and convicts those who deserve punishment while reducing the share of people caught in it who are innocent. He was convinced that “criminal punishment is both too severe and too frequent” and that “legal condemnation is a necessary but terrible thing—to be used sparingly, not promiscuously.” His biggest idea is that criminal justice can only be understood—by non-experts as well as experts—through a grasp of the interactions among its major elements. By showing that the division between criminal law (the elements of crime the government must prove to convict a defendant) and criminal procedure (the steps a police officer must follow to interrogate a suspect) that is respected by most scholars is in fact artificial and misleading, he demonstrated the benefits of approaching the field as a whole.
The history of criminal procedure, he showed, was “not really about procedure at all but about substantive issues, about what conduct the government should and should not be able to punish.” The most important change in this area came in Miranda v. Arizona, the landmark 1966 ruling requiring police, under the Constitution’s guarantee against self-incrimination, to give suspects taken into custody warnings about their right to remain silent and to call a lawyer, because that intimidating situation is likely to make a suspect feel he must talk. The purpose of Miranda was to give every defendant the opportunity to protect himself in the criminal justice system, not just wealthy suspects with access to skilled lawyers who could help make a case that a confession was coerced and therefore involuntary.
But the effect of Miranda was the opposite, Stuntz contended: The new rules gave suspects who could afford a skilled lawyer a “right to avoid police questioning altogether.” That was about one-fourth of criminal suspects. As for the other three-quarters, the warnings afforded few of them protection, because they didn’t understand what the warnings meant or, if they did, had no access to anyone who could enforce them. As long as the police could show they gave the warnings to the other three-quarters, they easily induced most suspects to waive their rights. Stuntz’s criticism underscored that, without provision of criminal defense lawyers for the poor, Miranda had much less beneficial impact than it promised.
Stuntz was a registered Republican and considered himself a conservative, and his reputation as such was buttressed by some truly conservative positions (for instance, he favored forms of profiling after the September 11 attacks). But it was more important to Stuntz that he appeal to both liberals and conservatives than that he be identified as either. The distinctiveness of his outlook was reinforced by his keenness to make his evangelical Christian faith part of his identity as a scholar. His best-known article about the role of Christian ideas in law suggests that Christianity’s most significant lesson in the face of the “arrogance” of contemporary legal theory is the faith’s “humility” about how hard it is to find definite answers to fundamental questions. His humility sometimes gave his writing the tone of an elegy.
Stuntz writes, “Discretion and discrimination travel together.” The percentage of adults who are black, white, and Latino using illegal drugs is roughly the same (10 percent, 9 percent, and 8 percent, respectively), but blacks are three times more likely than Latinos to do prison time for drug crimes and nine times more likely than whites. Why? The misrule of politics, according to Stuntz. Specifically, the misrule results from suburban voters in counties having a lot of say in who gets elected as prosecutors in the urban areas where serious crime is concentrated. As Stuntz writes, prosecutors “are usually elected at the county level” and “counties that include major cities have a much higher percentage of suburban voters than in the past.” Think here, for example, of Fulton County, Georgia, or of Wayne County, Michigan, both so much larger than Atlanta and Detroit, respectively, that they even include some rural stretches. In other words, it is voters for whom crime is largely an abstract problem who exercise sway, while residents for whom the problem is real have less power.
The disappearance of the jury trial symbolizes this shift. Almost all felony criminal convictions today—96 percent—come from guilty pleas obtained by prosecutors elected with the support of suburban voters, not from verdicts reached by juries drawn from residents in areas where crime is concentrated. The system, in Stuntz’s words, has become an “arbitrary, discriminatory, and punitive beast,” which is undemocratic in vesting decisions about punishment in those who aren’t part of the community where those being punished live. Stuntz’s main remedies for this include putting more cops on the street, making more lawyers available to represent criminal defendants, letting local rules about sentencing prevail, and shifting responsibility between local and state governments for who pays for local police and state prisons.
More cops would mean fewer prisoners and more robust local democracy. More lawyers for criminal defendants would mean better-prepared cases, fewer coerced pleas, and more reliable outcomes. Letting local rules about sentencing prevail would reduce the severity and the racial disparity in sentencing, and, with judges presiding over this phase, reduce the power of prosecutors. Shifting responsibility for payment, by having local governments pay a larger share of prison costs and a smaller share of local police costs, would give them an incentive to sentence fewer prisoners—and remove a disincentive from hiring more cops.
Stuntz was troubled by “institutional design and incentives” in criminal law and politics that push toward ever harsher rules and sentences. Power over criminal law is allocated to the three branches of government—the legislature makes it, the executive branch enforces it, and the judiciary interprets it—but they are not checks on one another in this sphere. In fact, legislators and the executive branch’s prosecutors both benefit from “more and broader crimes”: Legislators get more power when they define crimes more broadly because they reduce the role of judges in deciding who is guilty; and prosecutors have more power because they have more discretion about what and how to prosecute. As a result, legislators and prosecutors tacitly cooperate with each other, leading to both more law and less: more on the books, and less on the street, in the sense that the laws are so broad the police and prosecutors get to decide whom to go after and find guilty. Those decisions are about power. In the “rule of too much law,” Stuntz advises, “too much law amounts to no law at all.”
His solution to this set of problems is to replace the vicious cycle that creates them with a virtuous cycle based on cultivating a relationship between those who break the law (or are tempted to) and those who enforce it. For most of the twentieth century in the Northeast and Midwest, the ratio of police officers to prison inmates was two to one. Today, it is less than one to two. “More than any other statistic,” Stuntz writes, “that one captures what is most wrong with American criminal justice.” More cops mean more deterrence. More deterrence means fewer arrests and fewer convictions. In the 1990s, New York City had the biggest drop in urban crime during the decade. It also had the biggest increase in its police force.
Another important component would be fewer prisoners. This would require reducing the severity of sentencing, which is now “more punitive than Russia’s,” reducing the discrimination that contributes to blacks outnumbering whites among prisoners, and reducing “excessive prosecutorial power”—which is “unchecked by law and, given its invisibility, barely checked by politics.” And too much power for prosecutors doesn’t mean there are enough of them: Stuntz calls for many more, so there are more lawyers to litigate cases and the pressure on them to obtain plea bargains is alleviated. That would also require more money for public defenders to represent defendants in court.
A more drastic aspect of his reform vision would be sweeping changes in criminal laws—defining more crimes vaguely so courts would need to resort to jury trials to decide who was guilty. This would excuse from liability for the most serious offenses the least guilty members of a group of criminals and would even allow some guilty defendants to claim that, though their conduct fit the definition of a crime, it wasn’t so “wrongful” that it merited punishment. This would mean “constitutionaliz[ing]” much of basic criminal law, by asking courts to define its boundaries instead of legislators and prosecutors—and giving courts more power when many perceive them to have too much power already.
This unlikely element of his vision is also the most inventive. Stuntz contends that the Warren Court, instead of fixating on procedures addressed in the Bill of Rights, could have focused on equality as called for in the Fourteenth Amendment. In case after case where it settled on a procedural solution, the Court could have insisted that a black defendant who was plainly treated differently and less respectfully than a white defendant be guaranteed the equal protection of the laws. He called for the Warren Court to do what its conservative critics have usually attacked it for: to take an approach to constitutional reform that was “less legally grounded, more intuitive than lawlike.” This would surely have been lambasted as extreme judicial activism. But Stuntz believed that the Warren Court did not go far enough. He was a conservative who criticized the liberal Warren Court for its conservatism because he was convinced it would have been better for the justices to take a radical path.
The United States of the years right after World War II is unrecognizable in major ways because of changes wrought by the Warren Court. Landmark decisions it rendered about racial equality, school prayer, voting rights, and freedom of the press, as well as criminal justice, made our democracy more inclusive, more representative, more tolerant, and better informed, not to mention fairer to people accused of crimes.
But Stuntz wanted more. His hunger for more justice and mercy and, as a result, less crime and punishment made his work great. In this brave book, as contrarian as it is utopian, he constructs a powerful explanation about the vast and costly failure of the American criminal justice system and why the quest to reform it must be a high priority. He left an inspiring model of how.
Sunday, June 26, 2011
A Tale Of Two Crimes
06.24.11
Justice In America
by Abby Zimet
Justice In America
by Abby Zimet
Consider Paul Allen, 55, a former mortgage CEO who defrauded lenders of over $3 billion. This week, prosecutors celebrated the fact they got him a 40-month prison sentence.
Consider Roy Brown, 54, a hungry homeless man who robbed a Louisiana bank of $100 - the teller gave him more but he handed the rest back. He felt bad the next day and surrendered to police. He got 15 years.
Justice in America has a ways to go.
Thursday, May 5, 2011
Now That Bin Laden Is Dead, Can We Have Our Freedoms Back?
Let's remember once again who we are, and begin to rebuild our confidence in ourselves – starting with our system of justice.
By Karen Greenberg, Comment Is Free
Posted on May 4, 2011
Osama bin Laden's death removes the single focal point that has dominated American foreign affairs – and much of American politics at home – for a decade. And certainly, the United States and the world can breathe a sigh of relief that a dreaded enemy no longer needs to be countered. But the removal of bin Laden also opens up some space for thinking – not just for perpetual reaction, which has been the singular characteristic of the American version of the "war on terror".
It is time now, and going forward, to think about the impact bin Laden had on us and on our world, especially when it came to thinking about justice.
At the heart of the rhetoric justifying and explaining our policies has been the notion of justice. In the decade since 9/11, the word has been used to mean many things, including revenge, retaliation, punishment and even healing. So it was used by President Bush when he told the nation and the world, time and time again, that our purpose in waging war in Afghanistan and Iraq was the bring the enemy to justice. And in Sunday night's statement, President Obama labelled the killing of bin Laden as a moment of justice as healing.
What we need to remember, though, is that the effect of bin Laden's reign of terror on the notion of justice was to pervert it. Under the rubric of fighting terror, the United States rolled back its hallowed notions of civil liberties, its embrace of modernity, and even its reliance on its own courts. We delved into medieval-style torture, we reneged on our courts as a viable option for trying terrorists, and we blindly took aim at a religion, rather than its disaffected hijackers.
It is not surprising – but needs to be noted – that bin Laden was killed in a gunfight. The order was to kill not capture, even in a face-to-face encounter, which this apparently was. We thus forfeited the right to parade his excesses to the world at large – including to the thousands of Muslims whose family members have been killed by al-Qaida attacks. We ran, knowingly, from the chance to hold him in custody, and to punish him by due process and make him account to the world for what he has done.
This, then, was the inevitable ending to the way the United States has chosen to conduct this war. Bin Laden was an enemy so dreaded and so feared that his killing by military execution was the only possible end for a country that had given up so much of itself in his name. This was not a criminal, it was judged, that our courts, even after ten years, could handle. This was not an enemy whose fate the United States wanted to debate with the world and in the world's criminal courts. His killing put an end to innumerable conversations that would, arguably, have continued to confound nations and their citizens. In his death, as in his life, we followed his lead when it came to thinking about justice.
There is no denying that bin Laden's death is the end of the menace of al-Qaida as we know it: that without his leadership, a diffuse network, frayed at the edges by a decade of effective counterterrorism and harried by military interventions, will likely fall further into disarray. But a word of warning may be in order. Many of the pundits and politicians today are warning us not to let our guard down, to beef up security, to remember to be ever-vigilant – even if the immediate menace in our sights has been vanquished.
This is a version of the refrain that has marked the decade since 9/11: in fear, in hatred, in revenge, we need to fortify ourselves by forsaking many of our ideals. With this refrain in mind, we Americans, in the name of bin Laden, have been lured into a compromise with our own principles, whether it's on the matter of torture, of detention or of war without end.
Perhaps, in sending bin Laden's body into the waters of the ocean, we should consider sending all that he represented to us to the bottom of the sea as well. Perhaps we could, in his absence, remember once again who we are, and begin to rebuild our confidence in ourselves – starting with our system of justice.
By Karen Greenberg, Comment Is Free
Posted on May 4, 2011
Osama bin Laden's death removes the single focal point that has dominated American foreign affairs – and much of American politics at home – for a decade. And certainly, the United States and the world can breathe a sigh of relief that a dreaded enemy no longer needs to be countered. But the removal of bin Laden also opens up some space for thinking – not just for perpetual reaction, which has been the singular characteristic of the American version of the "war on terror".
It is time now, and going forward, to think about the impact bin Laden had on us and on our world, especially when it came to thinking about justice.
At the heart of the rhetoric justifying and explaining our policies has been the notion of justice. In the decade since 9/11, the word has been used to mean many things, including revenge, retaliation, punishment and even healing. So it was used by President Bush when he told the nation and the world, time and time again, that our purpose in waging war in Afghanistan and Iraq was the bring the enemy to justice. And in Sunday night's statement, President Obama labelled the killing of bin Laden as a moment of justice as healing.
What we need to remember, though, is that the effect of bin Laden's reign of terror on the notion of justice was to pervert it. Under the rubric of fighting terror, the United States rolled back its hallowed notions of civil liberties, its embrace of modernity, and even its reliance on its own courts. We delved into medieval-style torture, we reneged on our courts as a viable option for trying terrorists, and we blindly took aim at a religion, rather than its disaffected hijackers.
It is not surprising – but needs to be noted – that bin Laden was killed in a gunfight. The order was to kill not capture, even in a face-to-face encounter, which this apparently was. We thus forfeited the right to parade his excesses to the world at large – including to the thousands of Muslims whose family members have been killed by al-Qaida attacks. We ran, knowingly, from the chance to hold him in custody, and to punish him by due process and make him account to the world for what he has done.
This, then, was the inevitable ending to the way the United States has chosen to conduct this war. Bin Laden was an enemy so dreaded and so feared that his killing by military execution was the only possible end for a country that had given up so much of itself in his name. This was not a criminal, it was judged, that our courts, even after ten years, could handle. This was not an enemy whose fate the United States wanted to debate with the world and in the world's criminal courts. His killing put an end to innumerable conversations that would, arguably, have continued to confound nations and their citizens. In his death, as in his life, we followed his lead when it came to thinking about justice.
There is no denying that bin Laden's death is the end of the menace of al-Qaida as we know it: that without his leadership, a diffuse network, frayed at the edges by a decade of effective counterterrorism and harried by military interventions, will likely fall further into disarray. But a word of warning may be in order. Many of the pundits and politicians today are warning us not to let our guard down, to beef up security, to remember to be ever-vigilant – even if the immediate menace in our sights has been vanquished.
This is a version of the refrain that has marked the decade since 9/11: in fear, in hatred, in revenge, we need to fortify ourselves by forsaking many of our ideals. With this refrain in mind, we Americans, in the name of bin Laden, have been lured into a compromise with our own principles, whether it's on the matter of torture, of detention or of war without end.
Perhaps, in sending bin Laden's body into the waters of the ocean, we should consider sending all that he represented to us to the bottom of the sea as well. Perhaps we could, in his absence, remember once again who we are, and begin to rebuild our confidence in ourselves – starting with our system of justice.
Tuesday, February 23, 2010
What Are We Bid for American Justice?
What Are We Bid for American Justice?
Bill Moyers and Michael Winship
Posted: February 19, 2010 03:11 PM
That famous definition of a cynic as someone who knows the price of everything -- and the value of nothing -- has come to define this present moment of American politics.
No wonder people have lost faith in politicians, parties and in our leadership. The power of money drives cynicism deep into the heart of every level of government. Everything, and everyone, comes with a price tag attached: from a seat at the table in the White House to a seat in Congress, to the fate of health care reform, our environment, and efforts to restrain Wall Street's greed and prevent another financial catastrophe.
Our government is not broken; it's been bought out from under us, and on the right and the left and smack across the vast middle, more and more Americans doubt representative democracy can survive the corruption of money.
Last month, the Supreme Court carried cynicism to new heights with its decision in the Citizens United case. Spun from a legal dispute over the airing on a pay-per-view channel of a right-wing documentary attacking Hillary Clinton during the 2008 presidential primaries, the decision could have been made very narrowly. Instead, the conservative majority of five judges issued a sweeping opinion that greatly expands corporate power over our politics.
Never mind that in at least two separate polls an overwhelming majority of Americans from both political parties say they want no part of the Court's decision; they want even more limits on the power of money in elections. But candidates and their campaign consultants are gearing up to exploit the court's gift in the fall elections.
Just this week, that indispensable journalistic website Talking Points Memo reported that K&L Gates, an influential Washington lobbying firm, is alerting corporate clients on how to use trade associations like the Chamber of Commerce as pass-throughs to dump unlimited amounts of cash directly into elections. They can advocate or oppose a candidate right up to Election Day, while keeping a low profile to prevent "public scrutiny" and bad press coverage. And media outlets already are licking their chops at the prospect of all that extra money to be spent buying airtime -- as much as an additional $300 million dollars. That's not even counting production and post-production costs of campaign ads, which are considerable. A bad situation just got worse.
If you want to know just how much worse, look to the decision's potential impact on our court system, where integrity, independence and fair play count the most when it comes to preserving faith in our system. It's as susceptible to the lure of corporate wealth as the executive and legislative branches are.
Ninety-eight percent of all the lawsuits in this country take place in the state courts. In 39 states, judges have to run for election -- that's more than 80 percent of the state judges in America.
The Citizens United decision makes those judges who are elected even more susceptible to the corrupting influence of cash, for many of their decisions in civil cases directly affect corporate America, and a significant amount of the money judges raise for their campaigns comes from lobbyists and lawyers.
In the words of Charles W. Hall, a spokesman for the non-partisan, judicial watchdog group Justice at Stake, "Corporate bottom lines are not affected by whether a bank robber gets 10 or 20 years in prison. The bottom lines are affected however by whether a large scale lawsuit is upheld or overturned."
During the 1990s, candidates for high court judgeships in states around the country and the parties that supported them raised $85 million dollars for their campaigns. Since the year 2000, the numbers have more than doubled to over $200 million.
The nine justices currently serving on the Texas Supreme Court have raised nearly $12 million in campaign contributions. The race for a seat on the Pennsylvania Supreme Court last year was the most expensive judicial race in the country, with more than four and a half million dollars spent by the Democrats and Republicans. Now, with the Supreme Court's Citizens United decision, corporate money's muscle just got a big hypodermic full of steroids.
As Supreme Court Justice John Paul Stevens wrote in his 90-page Citizens United dissent, "At a time when concerns about the conduct of judicial elections have reached a fever pitch... the Court today unleashes the floodgates of corporate and union general treasury spending in these races."
States that elect their judges, he said, "after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems."
No wonder that legal experts, including former Supreme Court Justice Sandra Day O'Connor (the only living current or former Supreme Court member to have been an elected state court judge), have called for states with judicial elections to switch to a system of merit selection. Judges would be appointed but possibly subject to "retention elections" in which voters can simply vote thumbs up or down as to whether jurists are qualified to remain on the bench.
Until such changes are made, the temptations of corporate cash mean that in those states where judicial elections still prevail there hangs a crooked sign on every courthouse reading, "Justice for Sale."
Bill Moyers and Michael Winship
Posted: February 19, 2010 03:11 PM
That famous definition of a cynic as someone who knows the price of everything -- and the value of nothing -- has come to define this present moment of American politics.
No wonder people have lost faith in politicians, parties and in our leadership. The power of money drives cynicism deep into the heart of every level of government. Everything, and everyone, comes with a price tag attached: from a seat at the table in the White House to a seat in Congress, to the fate of health care reform, our environment, and efforts to restrain Wall Street's greed and prevent another financial catastrophe.
Our government is not broken; it's been bought out from under us, and on the right and the left and smack across the vast middle, more and more Americans doubt representative democracy can survive the corruption of money.
Last month, the Supreme Court carried cynicism to new heights with its decision in the Citizens United case. Spun from a legal dispute over the airing on a pay-per-view channel of a right-wing documentary attacking Hillary Clinton during the 2008 presidential primaries, the decision could have been made very narrowly. Instead, the conservative majority of five judges issued a sweeping opinion that greatly expands corporate power over our politics.
Never mind that in at least two separate polls an overwhelming majority of Americans from both political parties say they want no part of the Court's decision; they want even more limits on the power of money in elections. But candidates and their campaign consultants are gearing up to exploit the court's gift in the fall elections.
Just this week, that indispensable journalistic website Talking Points Memo reported that K&L Gates, an influential Washington lobbying firm, is alerting corporate clients on how to use trade associations like the Chamber of Commerce as pass-throughs to dump unlimited amounts of cash directly into elections. They can advocate or oppose a candidate right up to Election Day, while keeping a low profile to prevent "public scrutiny" and bad press coverage. And media outlets already are licking their chops at the prospect of all that extra money to be spent buying airtime -- as much as an additional $300 million dollars. That's not even counting production and post-production costs of campaign ads, which are considerable. A bad situation just got worse.
If you want to know just how much worse, look to the decision's potential impact on our court system, where integrity, independence and fair play count the most when it comes to preserving faith in our system. It's as susceptible to the lure of corporate wealth as the executive and legislative branches are.
Ninety-eight percent of all the lawsuits in this country take place in the state courts. In 39 states, judges have to run for election -- that's more than 80 percent of the state judges in America.
The Citizens United decision makes those judges who are elected even more susceptible to the corrupting influence of cash, for many of their decisions in civil cases directly affect corporate America, and a significant amount of the money judges raise for their campaigns comes from lobbyists and lawyers.
In the words of Charles W. Hall, a spokesman for the non-partisan, judicial watchdog group Justice at Stake, "Corporate bottom lines are not affected by whether a bank robber gets 10 or 20 years in prison. The bottom lines are affected however by whether a large scale lawsuit is upheld or overturned."
During the 1990s, candidates for high court judgeships in states around the country and the parties that supported them raised $85 million dollars for their campaigns. Since the year 2000, the numbers have more than doubled to over $200 million.
The nine justices currently serving on the Texas Supreme Court have raised nearly $12 million in campaign contributions. The race for a seat on the Pennsylvania Supreme Court last year was the most expensive judicial race in the country, with more than four and a half million dollars spent by the Democrats and Republicans. Now, with the Supreme Court's Citizens United decision, corporate money's muscle just got a big hypodermic full of steroids.
As Supreme Court Justice John Paul Stevens wrote in his 90-page Citizens United dissent, "At a time when concerns about the conduct of judicial elections have reached a fever pitch... the Court today unleashes the floodgates of corporate and union general treasury spending in these races."
States that elect their judges, he said, "after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems."
No wonder that legal experts, including former Supreme Court Justice Sandra Day O'Connor (the only living current or former Supreme Court member to have been an elected state court judge), have called for states with judicial elections to switch to a system of merit selection. Judges would be appointed but possibly subject to "retention elections" in which voters can simply vote thumbs up or down as to whether jurists are qualified to remain on the bench.
Until such changes are made, the temptations of corporate cash mean that in those states where judicial elections still prevail there hangs a crooked sign on every courthouse reading, "Justice for Sale."
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