Kathryn Schulz’s Confused Take On The Steven Avery Case

In a rather confused take on the Steven Avery case–the subject of the Netflix documentary Making a Murderer, Kathryn Schultz of the New Yorker writes:

“Making a Murderer” raises serious and credible allegations of police and prosecutorial misconduct in the trials of Steven Avery and Brendan Dassey. It also implies that that misconduct was malicious. That could be true; vindictive prosecutions have happened in our justice system before and they will happen again. But the vast majority of misconduct by law enforcement is motivated not by spite but by the belief that the end justifies the means—that it is fine to play fast and loose with the facts if doing so will put a dangerous criminal behind bars.

Pardon me, but the belief that the end justifies the means, which then prompts egregiously immoral actions–like the kind so clearly on display in Making a Murderer, is spiteful and malicious; it leads to actions that trample over all and any that get in the way of the particular end being realized. In the Steven Avery case, that belief–a rule for action–is spiteful because it disregards the moral and professional standards that are supposed to govern the conduct of law enforcement activity. I don’t mean to give Schulz a little lesson in moral philosophy but acting on the basis that the end justifies the means, which can mean treating a person as not a person–you know, one deserving to be treated as innocent until guilty–is a spectacular moral failure. It treats a person–like Brendan Dassey, abused in order to produce a coerced confession–as a means to an end, the kind of moral catastrophe Kant warned against.

Moreover, given Schultz’s apparent passion for the truth and for empirical assessments of the claims of investigative journalism, what does she base such a perception of law enforcement on? It cannot be the vast literature on prosecutorial misconduct or the racist system of mass incarceration which is this nation’s greatest current moral failure. Or is she simply taking law enforcement’s claims at face value? Still, it is nice to see a journalist sticking up for the side with the power to ruin innocent people’s lives. Those folks really don’t get enough positive press.

Ricciardi and Demos instead stack the deck to support their case for Avery, and, as a result, wind up mirroring the entity that they are trying to discredit.

Schultz imagines that journalism needs to be governed by the ‘both sides are equally culpable’ rule. But that is precisely not what journalism is supposed to be about. The best journalism is always partisan, a case often made quite eloquently by Glenn Greenwald (here is the most recent instance.) Moreover, most importantly, in the Avery case, plenty of supposed evidence against him was presented–he is in jail, after all. Perhaps someone should present Avery’s side of the story and concentrate on that so that the full dimensions of the tragedy at play can be brought out–rather than have it obfuscated once again by the considerations that led to his conviction in the first place.

Schulz is confused about both the issues that are supposedly the focus of her essay: the morality of ends-justifies-means behavior and the standards governing investigative journalism.

Contra Damon Linker, ‘Leftist Intellectuals’ Are Not ‘Disconnected From Reality’

Over at The Week, Damon Linker accuses ‘the Left’ of being disconnected from reality, basing this charge on his reading of two recent pieces by Corey Robin and Jedediah Purdy. (It begins with a charge that is all too frequently leveled at the Bernie Sanders campaign: that its political plans are political fantasies.) What gets Linker really offended is that ‘left-wing intellectuals’–who presumably should know better–are trafficking in the same ‘disconnected from reality’ ramblings.

I don’t think they are. Rather, they are doing the exact opposite of what Linker claims, and in this spectacular misreading of them, Linker only indicts his own disconnect from the actual historical realities of how ideas and actions–especially political ones–interact.

First, Linker suggests that Robin thinks that indifference to political reality is a virtue. As he notes:

In a provocative essay for The Chronicle of Higher Education, “How Intellectuals Create a Public,” Robin argues that “the problem with our public intellectuals today is that they are writing for readers who already exist, as they exist,” as opposed to “summoning” a new world, a new public, a new reality, into being.

In his essay, Robin offered a critique of Cass Sunstein‘s libertarian paternalism, suggesting that it merely further reifies an existing political reality, leaving everything as it was before; later Robin goes on to suggest that Ta-Nehisi Coates is afflicted by a kind of ‘impossibilism’ about the possibility of the “politics of a mass mobilization.” (Robin’s take on Coates deserves far more considered analysis than I can provide here. More on that anon.) Linker then, by linking to Marx’s famous quote in the Theses on Fuerbach about the need for philosophers to change the world and not just interpret it, insinuates that Robin is just being an impractical Marxist in accusing Sunstein and Coates of producing “an all too accurate reflection of the world we live in.” (Incidentally, this trope “You sound like Marx; you’re impractical!” is profoundly unimaginative. I’m surprised it still does work for people.) The production of this facsimile for Linker is a virtue; for Robin, in the case of Sunstein, it speaks of a limited imagination (in the case of Coates, I think, again, that matters are very different.)

What makes Linker’s critique of Robin especially bizarre is that from the very outset of his essay, Robin is talking about action, activity, making and remaking, interacting with this world, reshaping and reconfiguring it–through ideas and beliefs, expressed through writing, sent out into this world in an effort to change people’s minds, to make them see the world differently. This is about as far as being disconnected from reality as you can imagine; Robin is not advocating a retreat to the ivory tower, to write complacently for a pre-existent audience that will force the author into the templates of its demands; rather he is suggesting that the author, the intellectual, by the form and content of his ideas–as expressed in his writings–can change and alter those templates and bid his readers follow different trajectories of both thought and action.

As Robin says:

[The public intellectual] is…the literary equivalent of the epic political actor, who sees her writing as a transformative mode of action, a thought-deed in the world.

This is as ‘reality-based’ as you can get, and you only get to doubt that if you, perhaps like Linker, seemingly doubt the power of ideas and beliefs; you know, those things the American pragmatists called ‘rules for action.’ Let’s forget about religion for a second, and simply consider a couple of examples Robin provides: Rachel Carson‘s Silent Spring and Michelle Alexander‘s The New Jim Crow. The former produced an environmental movement; the latter has galvanized a nation-wide movement against mass incarceration.

As Robin goes on to note:

By virtue of the demands they make upon the reader, they force a reckoning. They summon a public into being — if nothing else a public conjured out of opposition to their writing. Democratic publics are always formed in opposition and conflict: “to form itself,” wrote Dewey, “the public has to break existing political forms.

The role for the public intellectual that Robin envisages is the breaking of existing political forms–philosophers of culture like Nietzsche suggested doing this with a hammer; we’ll have to settle for our word processors. Far from being disconnected with reality, Robin is suggesting an active engagement with the world; these engagements, Linker might be surprised to know, take many forms, ranging from the grubby and sordid to the elevated and sublime. Sometimes those forms of engagement are literary, sometimes physical, sometimes performative, sometimes emotional.

The problem is that Linker’s imagination is limited; he is himself cut off from the very reality he claims to be in touch with. Robin’s vision, by extending further than Linker’s, might be informing him that there are more things in this world than he might have allowed for.

Linker then moves on Purdy, summarizing his claims as follows:

[P]olitics and economics have been “denaturalized” in our time, and that even nature itself is undergoing the same process….all appeals to permanent, intrinsic truths or standards by parties involved in political, economic, or environmental debates have become unconvincing. Nothing is natural in the normative sense — no political or economic arrangement, and not even any specific construal of the natural world and its meanings.

All such appeals to nature are in fact conventional, artificial constructs of the human mind imposed upon the world.

Linker suggests that Purdy draws a ‘radical’ conclusion from this:

a wonderful opportunity [which] holds out the possibility of a collective “world-shaping project” that would bring about a radical democratization of politics and economics, and of the relation of both to the natural world.

Linker now fulminates:

The problem with this way of describing the world is not merely that it’s wrong. (As long as human beings have physical bodies that can thrive, be injured, and die, and as long as they live out their lives in a physical world that obeys natural laws disclosed by science, politics and economics will be hemmed in by constraints and obstacles that stand in the way of any number of potential “world-shaping projects.”)

Purdy’s claims are not particularly ‘radical’; instead they build on a rich tradition of deflationary claims about the pretensions of absolutist theorizing about metaphysics, ethics, and politics. Linker should know–if he’s read any philosophy of science or history of science–that science richly interacts with politics and economics and law. Thus the very science that Linker so valorizes is in fact something co-constructed with the society in which its practices are embedded. The politics and economics of this world impinge on the science it practices; a radical remaking of our politics and economics will also remake the science we practice. Not the truths it discovers but what it thinks it is important to research, investigate, and pursue as an object of knowledge.  Science is “hemmed in by constraints and obstacles that stand in the way of any number of potential “world-shaping projects.” Want to build that accelerator? Sorry; we don’t have the funds. Want to go to Mars? Same problem. Want to do stem-cell research? Sorry, no can do. The religious folk won’t stand for it.

If Linker simply wishes to say that our physical bodies and the world limits our physical actions, then he’s stating the obvious. What he missed out on, like he did with Robin above, is that Purdy is speaking of an untrammeled imagination, which hitherto has been restricted and confined to pre-existing categories of thought and possibilities. It is the ‘construals’ of the world that have been limited; change those and you change your sense of what is possible for your interactions with this world. We’ll always bump up against the hard, unforgiving edge of something or the other; but we don’t even know, so long as we are confined by existing construals, what and where those edges are.

And then, Linker levels that old canard:

The even bigger problem with Purdy’s account of things is that it renders political evaluation and judgment impossible. As Will Wilkinson writes in a brilliant critique of the essay, “Appeals to value only make sense…against a background of belief about how things really are. If our best ideas about the way the world works can’t put a boundary around political contestation, then leaving the lead in Flint’s drinking water makes as much sense as taking it out.”

The kind of anti-metaphysical claims that Nietzsche made, the kind of radical undermining he conducted of morality, did not render moral evaluation impossible. Au contraire, it bid us examine the foundations of our moralities to see whose interests were represented therein. We, moral subjects, could radically reconfigure those values by dint of our actions. By, you know, our politics, our imaginations, our actions, our writings.

Accusing of intellectuals of being disconnected from reality is a tired, old, reactionary political trick. It is a ideological maneuver, one that merely indicts the one making the charge of preferring their own fantastic vision of the world.

Cancer, Medical Marijuana, And A Personal Account

This page at the website of the National Cancer Institute, which describes some of the medicinal effects of cannabis and cannabinoids in cancer treatment regimes serves two salutary purposes for me today.

First, it confirms for me, yet again, that opposition to the War on Drugs and advocacy for the legalization of marijuana are A Good Thing[tm]. Indeed, knowing what we know about the War on Drugs and its implication in the mass incarceration monstrosity that stalks American life, opposition to the legalization of marijuana marks you as a, how you say, racist tool.

Second, in a kinder and gentler dimension, it reminds me of a great interaction with my mother three weeks before she passed away from a metastasized breast cancer (she had been in remission for four years before it returned.) On hearing from my brother that matters were not looking good for her as far as her treatment was concerned and that the ‘terminal stage’ was possibly around the corner, I had flown back from the US to the Indian Air Force station in Pune, India, where she was receiving treatment. (More precisely, she was being treated at the nearby Military  Hospital while staying with my brother on the air force base.) One day,  at home, between treatments, I was lying next to her on the bed she was resting on and chatting about sundry topics. At one point, as my mother described some of the pain and nausea that were now her lot, both before and after her chemotherapy treatments, I said to her, “You know mom, marijuana is supposed to be really helpful with that sort of thing. It reduces pain and helps combat nausea too.” My mother looked at me and said, “Have you tried it?” I replied, “Yeah mom, I’ve smoked it a few times.” She then leaned over, poked me in the ribs, and said, with a bit of a twinkle in her eyes, “Hey, we should go to that Osho Ashram [the central ‘offices’ of the organization affiliated with the Indian mystic and teacher Osho, which were located in Pune] and pick up some of that charas [hashish] they are always smoking.” We both collapsed in a fit of giggles. Honestly, if I had had the time, I would have scored some for her. In edible form, baked into fritters and consumed with tea, she would probably have been able to enjoy a great snack, and get some relief from her suffering too.

Meanwhile, medical marijuana has become legal in New York state, but unfortunately, it has been introduced with so many restrictions and bureaucratic hurdles that a) many sufferers from uncovered ailments will continue to not find relief and b) the state government will enable its own self-fulfilling prophecy that there is not enough demand for it. The folks in the New York state administration who have dreamed up this scheme stand indicted of the same charge I made above against those who oppose the legalization of marijuana with the additional knock of being indifferent to the sufferings of the sick.

Mass Incarceration And Teaching Philosophy Of Law

This coming spring semester, as in the just-concluded fall semester, I will be teaching Philosophy of Law. As I get down to thinking about my syllabus, one imperative seems overriding: I must ‘do more’ on mass incarceration (and related topics like the theory of punishment and the death penalty.) No topic seems more important, pressing, and urgent in today’s United States. In the face of the brutal particulars of mass incarceration (and the racism and War on Drugs that animate and sustain it), the highly theoretical particulars of the traditional debates in the philosophy of law–the nature of law according to natural law and positivist theories, legal reasoning, the interpretation of legal texts–seem curiously context-free, unanchored to empirical particulars pertaining to the lives of actual legal subjects. (To be sure, legal realist, critical legal studies, critical race, and feminist legal theories do animate and make concrete these discussions considerably; they also inject a much-needed dose of historical and political perspective.)

With these considerations in mind, a tentative outline for the upcoming semester’s syllabus suggests itself to me: begin with Lon Fuller‘s The Case of the Speluncean Explorers, using it to animate–or as my friend Cathy Kemp likes to say, ‘ignite’–discussions on natural law, positivism, and statutory interpretation; move on to Justice Oliver Wendell Holmes‘ classic The Path of the Law; follow this up with H. L. A. Hart‘s The Concept of Law (almost certainly not in its entirety), and then, switching gears, move to Michelle Alexander‘s The New Jim Crow and  Albert CamusReflections on the Guillotine. (As noted, this is an outline; I will supplement this basic structure with some selected case studies that will help illustrate the central issues at play in reasoning by analogy and precedent, and the dominant theories of constitutional interpretation.)

Needless to say, this is a pretty idiosyncratic syllabus, and I might be accused by many philosophers of law of leaving uncovered a host of topics that have traditionally been of interest to that demographic: rights, justice and equality, responsibility, legal procedure and evidence, torts, property, contracts etc. My syllabus shows a clear bias toward public law and ignores private law altogether; there is no critical legal studies; some traditional philosophers will be appalled to see Camus in this reading list; and so on. (The alert reader will have noticed however, that the first four topics on that laundry list cannot but occur, implicitly or explicitly, in a discussion of mass incarceration like the one undertaken in The New Jim Crow.)

I remain resolutely unapologetic about these omissions though. My syllabus will strike a reasonable balance between the ‘theoretical’ and the ‘applied’, and more to the point, it will bring into my classroom, that moral, political, and legal atrocity–mass incarceration–that is not only America’s greatest modern embarrassment but also, in some ways, the most relevant topic of all as far as my students’ lives are concerned.  I’d consider this the strongest reason of all in favor of its displacement of traditional material.

Political Protests And Their Alleged Associated Criminality

In The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press, New York, 2012, pp. 40-41), Michelle Alexander writes:

The rhetoric of “law and order” was first mobilized in the late 1950s Southern governors and law enforcement officials attempted to generate and mobilize white opposition to the Civil Rights Movement. In the years following Brown v. Board of Education, civil rights activists used direct-action tactics in an effort to force reluctant Southern states to desegregate public facilities. Southern governors and law enforcement officials often characterized these tactics as criminal and argued that the rise of the Civil Rights Movement was indicative of a breakdown of law and order. Support of civil rights legislation was derided by Southern conservatives as merely “rewarding lawbreakers.”

For more than a decade–from the mid-1950s until the late 1960s–conservatives systematically and strategically linked opposition to civil rights legislation to calls for law and order, arguing that Martin Luther King’s philosophy of civil disobedience was a leading cause of crime. Civil rights protests were frequently depicted as criminal rather than political in nature, and federal courts were accused of excessive lenience. thereby contributing to the spread of crime. In the words of then vice-president Richard Nixon, the increasing crime rate “can be traced directly to the spread of the corrosive doctrine that every citizen possesses an inherent right to decide for himself which laws to obey and  when to disobey them.” Some segregationists went further, insisting that segregation causes crime, citing lower crime rates in Southern states as evidence that segregation was necessary.

Sounds familiar, right?

When you want to make a ‘same as it ever was’ point, you are offered a choice: point to the present and then to the past, or point to the past and then to the present. As an added rhetorical flourish, you could mutter dark imprecations about history repeating itself, the first time as  tragedy and the second as farce.

In a post here a few days ago, I had made note of how the FBI and the Drug Enforcement Administration had reported that the Black Lives Matter movement and its concomitant Ferguson Effect had resulted in an increase in lawlessness and crime rates. (The New York Times had dutifully convened one of its Room for Debate segments to conduct a serious investigation of this ‘report.’)

These ideological tactics–responding to political protests with accusations of criminality–are exceedingly transparent; their pedigree and historical provenance is well-established. Their deployment by reactionary law-enforcement agencies should not be surprising; they possess  an established record of success in these political climes. What should be is the credulity of those who should know better–like for instance, esteemed members of our national media, who, apparently devoid of any historical consciousness whatsoever, faithfully parrot these claims without making note of their deployment in the past. 

As the recent Mall of America protests in Minneapolis show, Black Lives Matter shows no sign of flagging in its efforts; we should expect accusations like the ones above to continue apace.

Vincent Simmons: ‘The Innocent Burn When Falsely Accused’

A few decades ago, while watching a Bollywood potboiler at home with my parents, I saw a central character react sharply to a concocted accusation–perhaps of theft–by the movie’s villain, out to frame him and send him to jail so as to clear the way for his other nefarious plots. As our hero responded to this charge with loud, anguished protestations, his body shook; he seemed to be possessed by a demon of some kind. Unable to take my eyes off this acute reaction, I asked my mother, “Why is he so upset?” My mother replied briefly, “The innocent burn when falsely accused.” (Something is lost in the translation here.) Her language seemed apt; this man was aflame, suffering the agonies of being burned on the stake.

A few years later, in boarding school, a slimy weasel lodged a false complaint against me with the school prefects. Apparently, I had abused and hit him. I was lucky; the prefect who received the complaint let me off with a warning. As I stood there receiving his sonorous lecture about the need to behave better, to restrain myself and show some manners, I seethed with anger. What if I had actually been punished–perhaps by a caning or a punishment drill, or even worse, by suspension or expulsion? (Bullying, if found to be occurring, was a severely punishable offense.) I dared not even imagine what my response–helpless in the face of such injustice–would have been.

Last week, as I watched The Farm: Angola, USA, Jonathan Stack, Liz Garbus, and Wilbert Rideau‘s 1998 award-winning documentary set in the infamous maximum security Louisiana State Penitentiary, and discovered the story of Vincent Simmons, still serving a life sentence–hundred years–for the attempted aggravated rapes of a pair of teenaged twins in 1977, I remembered my mother’s words all over again.

Simmons has been burning for thirty-eight years now. He was railroaded into jail, and there he stays. No physical evidence linking him to the rapes was ever prosecuted by the prosecution; his alibis were discounted; his counsel provided him inadequate legal representation by failing to question state witnesses about their testimony; the victims professed to not knowing the identity of their attacker because “all niggers look alike”; he was identified and picked out of a line-up in which he was the only handcuffed person; it took sixteen years for him to be granted access to “the evidence file pertaining to his case, including police reports, arrest reports, victims’ statements, trial transcripts, the medical examiner’s report”; in The Farm, a parole board, which reviewed his case in 1998, summarily dismisses the compelling evidence he presents to them without so much as a discussion of the merits of his appeal; the legal and moral atrocities go on and on.

Many Americans remain unaware–blissfully so–of the catastrophe that is our penal system. The indigent innocent go to jail all the time, there to face further brutalization and diminishment of their life’s prospects. The book is too often thrown at them; that done, they are left to rot behind the walls. Racism, the war on drugs, and the vicious retributive streak that informs our notions of punishment have resulted in a collective perversion of ‘innocent until proven guilty.’

The horror of what is happening today, under our noses, should keep us awake at night. It should induce nightmares, visions of innocence falsely condemned.

Note: A proper review of The Farm will follow anon.

The Central Park Five: Justice Gone Wrong

One night, late in April 1989, I sat in an apartment in Jersey City, discussing the Central Park jogger rape case with two friends. One of them, a black Haitian-American, expressed unease over the press and television coverage of the case, the use of the language of ‘wolf packs,’ ‘savages,’ ‘wilding,’ and all of the rest; it all seemed a little too similar to calls for lynching in the past. The other, a white Cuban-American, dismissed such concerns, saying that the five boys arrested for the rape were indeed savages for the brutal rape and beating they had committed, and deserved to be described and treated thus–perhaps even strung up. My Haitian friend shook his head; he was concerned this language was reserved only for black Americans, that it would serve to demonize the black community; he wondered if the press would have reacted the same way if a black woman had been raped, if the perpetrators had been white instead.

I mostly listened. I had only been in the US for two years then; I was still coming to terms with the racial politics of a country which I had thought I understood well from afar, but which had turned out to be bewilderingly different. I was ambivalent. Even though I felt some of the same unease that my Haitian friend did, I was also stunned by the ferocity and viciousness of the attack on the Central Park jogger; I had spent two years experiencing the inner-city blight of Newark, and had become susceptible to the claims that all of its pathologies could be blamed on hyper-aggressive, criminal, young black men.

Our argument finally ran out of steam; we returned to drinking forties of malt liquor, smoking cigarettes, and watching with some amusement, the the drug dealers plying their trade on the street below.

The prosecution of the five boys arrested for the rape did not so spend itself; it went all the way and sent innocent juveniles to jail; one of them spent a dozen years behind bars. That horrifying story of a miscarriage of justice–one only redeemed by a jailhouse confession made by the actual culprit–is captured well in Ken BurnsThe Central Park Five;  so painful is the record of police and prosecutorial misconduct, forced confessions, willful blindness to the lack of evidence, and the damage done to families and lives, that my wife walked out of our living room in tears, unable to watch any more. She returned a little later after composing herself, and we resumed watched this searing record of truth thrown under the bus wind down to its sorry conclusion, right down to the postscript that notes the civil lawsuit filed by the five against New York City. (That case was finally settled on 5 September, with a $41 million payout.)

The Central Park Five should enrage you; it should especially do so because many, if not all the ills noted in it–especially the racist criminal justice system, so brutally indicted in Michelle Alexander’s book, The New Jim Crow–are still depressingly resilient features of the American landscape.

You know that line, ‘If you see something, say something’? Well, go see The Central Park Five, and then do something. Get angry. Volunteer at The Innocence Project for instance. (A full quarter of the cases it has successfully resolved false confessions–just like those in the case of the Central Park Five.)