Dear Men, Shut Up About ‘Due Process’ Already

From sea to shining sea, on social media pages nationwide, brave men are taking up cudgels on behalf of their brothers-in-sex-and-gender, the ones whose lives are facing ruination because of this country’s #MeToo moment, as accusation after accusation of sexual harassment and assault issue forth from women who’ve previously remained silent. In each case, their defense takes an exceedingly simple form: it is to insist on ‘due process,’ to assert that every ‘accused’ has a ‘presumption to innocence,’ that they are ‘innocent until proven guilty,’ that they fear this business of identifying the men who harass and assault in impunity is all too likely to morph into that most dreaded of social epidemics: the witch hunt. Cease and desist, they say; let us wait till ‘the facts are in,’ till a ‘trial’ has taken place and ‘guilt’ has been conclusively established.

There are several–deliberate, I suspect–confusions at play here. Most prominently, this kind of response confuses the standards for a criminal conviction by the state in a court of law with the usual evidentiary standards that underwrite our usual social judgments of misbehavior. A courtroom furnishes one epistemic context; it addresses the imbalance of power that exists between the state and the accused, and puts the burden on the state to prove its point. This standard of proof is relaxed in civil cases, which only require a ‘preponderance of the evidence’ and do not require guilt to be established ‘beyond a reasonable doubt.’ Our day-to-day social encounters furnish yet other epistemic contexts; within them, we are, on a daily basis, subjected to ‘evidence’ of varying  levels of reliability, submitted by sources whom we trust to varying degrees; we act on the basis of these sorts of claims, assessing them using our socially acquired and developed skills of evidence evaluation; we often act on the basis of incomplete or only partially verified evidentiary claims; indeed, we have to, for stasis and inaction are not options more often than not. That is, we do not sit around, waiting for the standards of a criminal court to be satisfied before we act; social ends, desirable ones, have to be met.

Critical legal studies scholars have, for a long time now, identified one dishonorable ideological function that the law and its institutions–among which is legal language–play in our society: the establishment of a kind of ‘rationality’–the legal kind, which ostensibly aspires to the value-free, fact-laden-and-dependent kind of reasoning followed in the sciences–which can then be used to discredit other kinds of reasoning. The invocation of deployment of criminal law’s standards of evidence and its methodology for determining ‘guilt’ in social contexts outside of courtrooms is a good example of this kind of ideological maneuver. This invocation is particularly problematic when it is realized that courtroom deliberations themselves are anything but value-and-bias-free; determinations of guilt in courtrooms are as socially and politically riven as those that take place elsewhere; it is just that legal decisions lay claim to a presumption of having cleansed themselves of prejudice thanks to their supposed circumscription by ‘legal method.’

This particular technique of obfuscation has a long and dishonorable history–and it looks likely to continue for the established future. After all, maintaining this confusion is necessary for the maintenance of established power relations and for the continuance of bad behavior by serial offenders.

The Implausible Immigrants Of ‘The Night Of’

In HBO’s The Night Of a young Pakistani-American, Nasir Khan, has a bad night out: he ‘borrows’ his father’s cab for a joyride, picks up a mysterious and beautiful stranger, parties with her, and wakes up in her apartment to find her dead, and himself accused of murder. Things look bad, very bad. And so we’re off, probing into the subterranean nooks and crannies of the criminal justice system. Meanwhile, on the ‘outside,’ his stunned and bemused parents, convinced of his innocence–remain stunned and bemused, fumbling about, accepting help as and when it is given to them by strangers. This depiction of their plight and their reaction to it reveal this show’s understanding of immigrant life to be a very superficial one.

Immigrants don’t sit around, waiting for help to fall into their laps. The fact that they left their homelands to seek a better life is a prima facie indication they don’t do so. Here is what a pair of real-life Mr. and Mrs. Khans, living in the US for long enough for their son to have been born and brought up here, would have done had their son been picked up by the police and thrown behind bars: they would have started working the phones, calling every single one of their friends and family members who could help. They would have put the word out; they would have hustled, desperately and frantically, in a  manner quite familiar to them. The would have worked every ‘angle’ available to them. Perhaps a friend knows a friend who knows a criminal lawyer (“Let me call Hanif, his friend Syed used to work with a lawyer once”); perhaps someone knows a local Congressman who could help (“Do you think we should call Rizwan to see if he can put in a good word for us?”).  The Khans are shown living in Queens; their precise neighborhood is never named, but one can guess the show’s makers had Jackson Heights–where a large Indian, Pakistani, and Bangladeshi community resides–in mind. If the Khans had been living there for any length of time, they would have built up, as all immigrants do, a rich network of connections who would have enabled and facilitated many aspects of their life in New York City. Nasir’s father, Mr. Khan, is shown as being successful enough to have a part-share in a cab; he did not get to that point without: a) displaying considerable drive and b) cultivating partnerships and relationships.

Leaving an old life in one’s home and starting a new one elsewhere take energy and initiative, the kind conspicuously absent in The Night Of’s depiction of an immigrant family’s responses to a personal catastrophe. The networks of ‘connections’ and ‘contacts’ immigrants rely on to replace the comfortable social structures of the past are what make their lives in this new land possible; an immigrant who did not instinctively rely on such forms of aid, and who did not display sufficient initiative to draw on them, would not last too long in this unforgiving land. Mr. and Mrs. Khan do a good job of looking like shocked parents; they don’t do such a good job of looking like immigrant parents who have brought up their child away from ‘home. ‘

Angela Davis On Reparation, Reconciliation, And Prison Abolition

In Are Prisons Obsolete? (Seven Stories Press, New York, 2003, pp. 106) Angela Davis writes:

It is true that if we focus myopically on the existing system–and perhaps this is the problem that leads to the assumption that imprisonment is the only alternative to death–it is very hard to imagine a structurally similar system capable of handling such a vast population of lawbreakers. If, however, we shift our attention from the prison, perceived as an isolated institution, to the set of relationships that comprise the prison industrial complex, it may be easier to think about alternatives. In other words, a more complicated framework may yield more options than if we simply attempt to discover a single substitute for the prison system. The first step, then, would be to let go of the desire to discover one single alternative system of punishment that would occupy the same footprint as the prison system.

There are several, by now familiar, components to such reform then. Among others: decriminalizing some activities currently deemed illegal (ending the ‘War on Drugs’ would be an exceedingly good start); reviewing and revising sentencing guidelines (and investigating racial disparities in sentencing); increasing oversight and monitoring of penal facilities to diminish abuses like assault and rape within its confines; restoring the rehabilitative and reformatory capacities of prisons by facilitating the education of inmates; etc.

Yet others call for more radical reconceptualization in the direction of “a justice system based on reparation and reconciliation rather than retribution and vengeance.” In the reparative dimension Davis cites the work of the Dutch criminologist Herman Bianchi whose work on restorative justice includes suggestions that “crime needs to be defined in terms of tort” i.e., turning it into an offence against a person rather than the state, and thus replacing imprisonment with other impositions that would attempt to make good the harm done to the victim. In the dimension of reconciliation, Davis recounts the powerful and moving story of Amy Biehl, who was murdered by young South African men in Capetown in 1993. (Biehl’s killers apologized to her parents during the review of their amnesty petition to the Truth and Reconciliation Commission; later, her family reconciled with two of the killers–Easy Nofemela and Ntoboko Peni–and even employed them in administrative positions in their memorial Amy Biehl Foundation.)

Implicit in such discussion of reform are, of course, a set of questions pertaining to punishment, revisiting which is an essential step to this process: Why does a social group punish? How does it select those it punishes? What punishment is suitable and appropriate for a particular crime? It is in exploring the space of possible answers to these questions that a society’s most fundamental presumptions about punishment, morality, and justice will be made visible; and it is in exploring alternative answers to the ones currently given that more creative opportunities for reform will present themselves. These opportunities to explore and evaluate alternatives will only be possible, of course, if those who intend to reform heed Peter Biehl’s words, that “sometimes it pays to shut up and listen to what other people have to say, to ask: ‘Why do these terrible things happen? ‘ instead of simply reacting.”