“Justice Must Satisfy The Appearance Of Justice”: The System Must Counteract Prosecutors’ Natural Sympathies For Cops
“Justice must satisfy the appearance of justice,” Felix Frankfurter wrote, in a Supreme Court case 60 years ago.
That edict — a foundation of democracy — has not been observed in some recent high-profile cases in which grand juries have refused to indict police officers for killing unarmed African-Americans. The resulting injury is not just to criminal justice but to the legitimacy of the government itself.
As a former prosecutor let me put this as directly as possible: Blame the prosecutors, not the grand jurors. There is one reason that Daniel Pantaleo is not being charged in the death of Eric Garner. It’s because District Attorney Dan Donovan of Staten Island did not want him to be.
Why not? The cynical point of view is that Donovan was playing to his base. Staten Island is the whitest and most conservative borough in New York. It’s also home for many cops. Maybe Donovan figured he would take heat however the grand jury came out, but the people who would be protesting in the street in the event of no indictment did not include most of his electorate.
But there is a more benign explanation. Maybe Donovan just appreciates that cops have one of the most difficult jobs in the world, and so, he cuts them some slack. It’s a very human reaction.
I speak from whence I know. One reason I became a prosecutor is that I had a number of bad experiences with the police where they racially profiled or just generally disrespected me. I thought I could go in as an undercover brother and change the system from the inside. What happened instead is that the system changed me.
When you work with cops every day you definitely gain more respect for their difficult work. And you need them to help you make your cases (every prosecutor has experienced having a police officer catch an attitude, sometimes in the middle of a trial, and purposely ruin your case because they don’t like you).
And finally policing is like most other employment — a few people do most of the work. So prosecutors see the same cops over and over, and they bond with them. It’s not so much that they excuse egregious misconduct as that they cast a blind eye. Nothing irks a cop more than an elitist prosecutor treating him or her like “some suspect.”
So the problem stems from the culture of the prosecutor’s office, compounded by the fact that, like most lawyers, prosecutors are competitive and ambitious and the way you move ahead is to win your cases, and the way you win cases is get your star witnesses — the cops — to go the extra mile. All that makes it really tough to try to send one of them to prison — even when they have messed up big time, as I believe Pantaleo did when he placed Eric Garner in a banned chokehold.
In a democracy, no one should be above the law. It’s fine for citizens to profoundly respect the men and women who serve as law enforcement officers. But when those people break the law, they must be held accountable just like anyone else. The automatic appointment of special prosecutors in criminal investigations of police is the best way to avoid district attorneys’ natural biases and make sure that justice satisfies the appearance of justice.
By: Paul Butler, Former Prosecutor and a Professor at Georgetown University Law Center; The Opinion Pages, Room for Debate, The New York Times, December 4, 2014
“Republicans Were Not Elected To Govern”: Rush Limbaugh Is Emblematic Of Our Political Rot
It is stunning that leading conservative thinkers are arguing that the Republican majority in Congress is a mandate for even more gridlock. Rush Limbaugh says Republicans weren’t elected “to make Congress work. They weren’t sent there to get along.” Instead, Limbaugh argues, their mandate is “to stop Barack Obama. Republicans were not elected to govern.”
The National Review, an influential conservative publication, says the GOP should focus on creating the best possible climate for electing a Republican president in 2016: “Not much progress is possible until we have a better president. Getting one ought to be conservatism’s main political goal over the next two years.”
It is small wonder that a growing number of citizens aren’t voting, reasoning that their ballot won’t change anything. And why many exhort via bumper stickers: “Don’t Vote! It Only Encourages Them!”
In this election, turnout was just 36 percent, the lowest turnout since 1942. It is particularly young voters that are not bothering to vote. They are beginning to look for other ways to bring about social change. A new youth radicalization has begun.
For many Americans, Congress is dysfunctional and deeply corrupt. For these voters, Abraham Lincoln’s notion that Congress is “government of the people, by the people, for the people” has become laughable. The more the citizens don’t feel their political institutions reflect their will, the more they question the legitimacy and applicability of the institutions’ decisions.
The American political sociologist Seymour Martin Lipset wrote that legitimacy is “the capacity of a political system to engender and maintain the belief that existing political institutions are the most appropriate and proper ones for the society.” The ongoing abuse of trust by office holders is the product of widespread rot. The result is a full-blown crisis in legitimacy.
The solution isn’t to allow online voting or other methods of increasing the turnout. We need more than changes to politics. It’s time to reinvent democracy itself.
The first era of democracy created representative institutions, but with weak mandates, passive citizens and politicians beholden to powerful funders and special interests. Call it “broadcast democracy.” It was only a matter of time before such a model ran its course.
We need to replace this old model with a new era of “participatory democracy” built around five principles.
1. Integrity, which is basically about doing the right thing. To rebuild the public’s trust in political institutions, elected officials need to embrace integrity – which is honesty and consideration. Honest politicians establish trusting relationships with voters, politicians need to be open and fairly disclose information. They must be truthful, accurate, and complete in communications. They must not mislead or be perceived to mislead.
Considerate officials don’t cause traffic jams for those who disagree with them. They have regard for the interests, desires, or feelings of others especially the electorate. They don’t spy on their citizens and undermine their basic right to privacy. They don’t kill good political discussion with negative attack ads. Politicians everywhere know that negative advertising is toxic to democracy, poisons reasoned political debate and dumbs down the discussion. Nevertheless, they trash their opponents with attack ads alienating voters and adding to the legitimacy crisis.
2. Accountability to the electorate. We need to divorce politicians from relying on big money. US citizens thought they had a system that limited big donations, but the right-wing Supreme Court clearly became alarmed at the possibility of wealthy donors not being able to influence elections. In the notorious Citizens United case, the court effectively lifted the limits on political donations, and a casino magnate promptly pledged $100 million to fight Obama’s re-election in 2012. Stanford Law Professor Larry Lessig is right that we need to adopt the policies of other countries that place strict controls on campaign financing.
3. Interdependence. Elected officials need to recognize that the public, private sector and civil society all have a role to play in sustaining a healthy society. As Jeffrey Sachs has argued there is a price to civilization and we need strong, good government. When politicians say the best role of government is “to get out of the way,” they are shirking their responsibilities. Strong regulations saved Canadian banks from being sucked into the US sub-prime mortgage crisis. The banks and Canada are healthier because of this. Similarly corporations and NGOPs are becoming pillars of society and we all need new ways of collaborating on shared interests.
4. Engagement with citizens. We need ongoing mechanisms for government to benefit from the wisdom and insight that a nation can collectively offer. Using the Net, citizens can become involved, learn from each other, take responsibility for their communities and country, learn from and influence elected officials and vice versa. It is now possible to have a three-day “digital brainstorm” with the entire electorate of a country. Challenges, participatory budgeting, electronic town halls, have all proven effective in turning voters into participants in democracy.
5. Transparency. Almost everything should be done in the full light of day. Sunshine is the best disinfectant, and the Internet is the perfect vehicle to achieve this. Transparency is critical to trust. The question “What are they hiding?” encapsulates the relationship between transparency and trust. It implies that if government leaders hold secrets, they do so for a nefarious reason and therefore are un-deserving of trust. Citizens know that the fewer secrets leaders keep, the more likely they will be trusted. Transparency, even radical transparency is becoming central to building trust between stakeholders and their institutions.
To restore legitimacy and trust we need a second era of democracy based on integrity and accountability, and with stronger, more open institutions, active citizen citizenship and a culture of public discourse and participation.
By: Don Tapscott, The Huffington Post Blog, November 17, 2014
“The Problem Of Political Precedents”: When Failure Is Rewarded, It Encourages More Failure
In a democracy, fear is supposed to be a powerful motivator for policymakers. There’s a constant realization that there’s always another election coming, and those who want to keep their jobs – and avoid voters’ wrath – will have to be responsible stewards of the public trust.
But what if these norms start to break down? What if the incentives baked into the cake prove to be faulty?
Kevin Drum made a comment last week that struck a chord, noting that Americans seemed inclined to blame Democrats, not Republicans, “for the rising dysfunction of the federal government.”
[This] is especially galling for Democrats, but it’s a win for Republicans and yet another sign of change in the way Washington is likely to work in the future. Republicans have discovered that a sufficiently united party can obstruct everything and anything but largely escape blame for the resulting gridlock.
This lesson has not been lost on Democrats, and it bodes ill for the future regardless of who wins our next few elections.
I think that’s correct and it’s a point that’s not repeated nearly enough.
In a democratic model, the last couple of years have been a mess of historic proportions. Republicans, consciously or not, decided to roll the dice – they would ignore the 2012 election results, refuse to govern, and kill measures regardless of their merit, popular support, or bipartisan appeal. They would shut down the government. They would eschew compromise. They would ignore calls to present policy solutions of their own. They would create the least productive Congress in modern American history.
And then they would wait for the American people to give them a reward.
Which voters delivered yesterday with a lovely bow on top.
When there is no accountability in a political system, there is no incentive for even well-intentioned policymakers to behave responsibly. It seems quite twisted: an unpopular party with unpopular ideas failed miserably at basic governance, and was rewarded handsomely for its efforts. The process isn’t supposed to work this way, and yet we now know it works exactly this way.
The resulting precedent is more than a little discouraging. When failure is rewarded, it encourages more failure. When obstruction is rewarded, it encourages more obstruction. When radicalism is rewarded, it encourages more radicalism. When a refusal to compromise is rewarded, it means politicians will be led to believe they, too, should refuse to work on bipartisan solutions.
It’s not a recipe for sound governance.
By: Steve Benen, The Maddow Blog, November 7, 2014
“Everybody Should Vote!”: If The Concern Is Voting Interferes Too Much With ‘Normal’ Life, Shouldn’t It Be As Convenient As Possible?
One of the crazy-making things about elections in this country, and particularly low-turnout non-presidential elections, is that we’ve lost a presumption that used to be a goo-goo truism: it’s a good thing for everybody to vote. Nowadays you get the feeling–not just from Republicans but from pollsters and the MSM–that there’s something unsavory about people voting when they’re not “enthusiastic” about it. Along with this is the suggestion that encouraging people who aren’t enthusiastic about voting or politics or the candidate choices to nonetheless vote is some sort of dark bearing, a slight aroma of fraud.
There’s an age-old conservative ideological argument often embedded in the contrary presumption against universal voting–I discussed it at some length here. But people naturally are reluctant to fully articulate the belief that only those who hold property or pay taxes should be allowed to vote; that’s why such beliefs are typically expressed in private, with or without a side order of neo-Confederate rhetoric.
More often you hear that poor voter turnout is a sign of civic health. Here’s an expression of that comforting (if not self-serving) theory by the Cato Institute’s Will Wilkinson in 2008:
[L]ower levels of turnout may suggest that voters actually trust each other more — that fewer feel an urgent need to vote defensively, to guard against competing interests or ideologies. Is it really all that bad if a broad swath of voters, relatively happy with the status quo, sit it out from a decided lack of pique?
First of all, everything we know about the people least likely to vote is not congruent with an image of self-satisfied, happy citizens enjoying a “lack of pique” or trusting one another too much to resort to politics. But second of all, nobody’s asking anyone to stop living their lives and raising their kids and going to work in order to become political obsessives. Voting, and even informing oneself enough to cast educated votes (or to affiliate oneself with a political party that generally reflects one’s interests), requires a very small investment of time relative to everything else. And if the concern here is that voting interferes too much with “normal” life, shouldn’t we make it as convenient as possible?
Everybody should vote, and everybody’s vote should count the same–that goes for my right-wing distant relatives who think Obama and I want to take away their guns, and for people struggling with poverty, and for people fretting that those people want to take away “their” Medicare, and for people trying to rebuilt their lives after incarceration. And it goes for people who aren’t happy with their choices because failing to vote simply encourages the same old choices to persist. Hedging on the right to vote takes you down a genuinely slippery slope that leads to unconscious and then conscious oligarchy and even authoritarianism. And so to paraphrase Bobby Kennedy, we should not look at eligible voters and ask why they should vote, but instead ask why not? There’s no good answer that doesn’t violate every civic tenet of equality and every Judeo-Christian principle of the sisterhood and brotherhood of humanity.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, October 31, 2014
“After Voter Suppression”: Focusing The Nation’s Attention On The Magnitude Of The Problem
So much has happened in so many parts of the judicial system regarding Voter ID and other recent efforts to restrict the franchise that it’s hard to get a fix on the big picture. But at the New Yorker, Jeffrey Toobin has seen the future of SCOTUS action on voting rights in its rulings on Wisconsin (halting implementation on grounds of timing) and Texas (giving that state the green light) Voter ID laws, and it’s not good:
The Wisconsin and Texas rulings were just preliminary requests for emergency relief, and the Supreme Court may yet hear the cases in full on the merits. But there seems little chance that a majority of the current Court will rein in these changes in any significant way. In courtrooms around the country, it’s been made clear that these Republican initiatives have been designed and implemented to disenfranchise Democrats (again, usually of color). But the Supreme Court doesn’t care.
So Toobin thinks it’s time to make a mental adjustment back to the mid-1960s, when hostile state laws and practices on voting were overwhelmed by the sheer moral and physical presence of people exercising the rights they still had and participating in elections whatever the difficulty:
Certainly, the obstacles for voters in the contemporary South do not compare to those that the civil-rights pioneers, black and white, faced until the early nineteen-sixties. In the Freedom Summer of 1964, the still nascent civil-rights movement coalesced around an effort to register voters in Mississippi. It was during that summer that the infamous murders of the civil-rights workers James Chaney, Andrew Goodman, and Michael Schwerner took place. In addition, of course, black Mississippi residents endured less well-known but equally horrific abuse from state authorities during this time. In those days before the Voting Rights Act, the effort did not succeed in registering great numbers of voters, but it did focus the nation’s attention on the magnitude of the problem.
So it could today. In light of the changes in the state laws, it’s difficult but not impossible to register voters and make sure that they get to cast their ballots. And it’s absolutely mandatory in a democracy for that to be done.
The title of Toobin’s essay is “Freedom Summer, 2015.” It’s sobering to realize that’s what we may need to restore voting rights long thought to be relatively secure. But it’s also a reminder that reactionaries who fear democracy (not just judicial conservatives, but the Con Cons who think “losers” have forfeited the right to have any say in what “winners” do with their money and power) have been defeated before in more extreme circumstances.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, October 28, 2014
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