12.3.09 LIBERTY AND JUSTICE FOR SOME

This article originally appeared in the 12.3.09 issue of Metroland.


Like it was any secret, the extreme far right, increasingly known simply as the Republican Party, showed its true un-American stripes again last week. While parading as the “law and order” party (“as opposed to what?” he asks rhetorically), Republicans have long been too willing to simply throw the “law” part out the window. Once again, the GOP has demonstrated that it is simply the “order” party, with that order coming at whatever cost to freedom, justice, the rule of law, and sanity.

To start, let’s accept that Republicans have essentially abdicated any pretense of participatory democracy or considered argument; instead they reflexably oppose anything, anything at all, proposed by Obama and the Democrats. This opposition typically takes the form of memes and talking points fed to elected Republican leaders through corporate-financed think-tank consultants and from the fertile, ratings-obsessed minds of folks like Rush Limbaugh and any number of people at Fox News. You’ve seen it on an almost daily basis during the past year.

So, it was not surprising, but still disappointing, when the faux-patriots attacked Attorney General Eric Holder’s decision to try a handful of alleged 9-11 conspirators in U.S. Federal Court in Manhattan. Not only did they attack Holder, they attacked, in the most blatant and ridiculous way, our system of justice.

These pathetic little white men squawked that the accused terrorists might be acquitted! They prattle on about “high-priced defense lawyers” and “juries” and “remember what happened with OJ”. In other words, the Republican Party is arguing that our court system is rigged, is a failure, and cannot be trusted with dispensing justice ever, and especially when the stakes are high. Ergo, when those stakes are high enough, we must trash any semblance of the rule of law or justice, and simply hang whomever comes along.

OK, I’m a little hyperbolic. Maybe just a little. But the fact remains that the Republican Party is more than willing to marginalize and demonize our entire judicial system, because, you know, we gotta make Obama look bad. Nothing else really matters.

The fact is that our criminal justice system has checks and balances, and that if law enforcement doesn’t do its job right, bad guys can sometimes go free. And the standards of whether law enforcement is doing its job right is an ever-evolving set of rules designed to balance personal liberty (also known as freedom) and public safety. For it to be otherwise would mean a totalitarian police state, which is apparently what the Republicans would prefer (with exception made, or course, for Christian white men with guns).

In a quote well known to every law school student, British jurist William Blackstone said “Better that ten guilty persons escape than that one innocent suffer.” Meaning, that if a criminal justice system in a civilized society should err, it should favor innocence. That the imprisonment (in Texas, add death) of one innocent person is so morally intolerable, so repugnant, that the price of insuring that it doesn’t happen is letting some bad guys go. And this isn’t some new wacky liberal concept. Blackstone made this statement in the 1700’s. Right around the time he coined the phrase “the pursuit of happiness.”

“Law and order” types have a real hard time embracing Blackstone’s statement. Actually so do a lot of people, including me. Ten? Yeow! I’ll give you maybe five. (For a mindbending exploration of what’s become known as “Blackstone’s Quotient” take a look at the paper “n Guilty Men” by Alexander Volokh, available at www.law.ucla.edu/volokh/guilty.htm). But most of us are in line with the general concept.

Now, I’m sure not advocating these demented fanatic terrorists (and I’m not aware there’s anybody out there who thinks these guys are not, in fact, really terrorists) be set free, or even to allow for a reasonable possibility for that to happen. What I am saying, and what Holder is saying, is that our system of criminal justice is capable of doling out proper justice transparently, under one set of rules for all. I’ll note that Holder expects that the prosecution will seek the death penalty, and will get it.

All this right-wing reflexive and ultimately undemocratic nonsense is frustrating and infuriating, especially since so many normal citizens buy into it, hook, line, and tea-bag. But again, not surprising. We live in a country that has elected George W. Bush twice in the last ten years and there’s no reason to think that Obama’s election suddenly transformed the nation into one teeming with intelligence, critical thought, historical perspective, and reason.

But we can continue to hope.