Commenter Archive

Can't speak for Saul but, despite my own libertarian tendencies, I've come to make peace with the welfare state (or at least some type of social safety net) as necessary for a small 'r' republican form of government to survive in the modern world. I don't think we can let the bottom drop out in a highly specialized post industrial economy and not expect a populist reaction. We're already seeing a form of it in the Trump campaign, and to a lesser extent the Sanders campaign. I also don't think we can let economic inequality become so extreme that equality before the law is actually or perceived to have been eliminated, and still have something lIke a free society where the state adheres to the rule of law.

The idea of positive rights as proposed by some left wingers are intellectually juvenile but too many libertarians fail to identify how fragile the old school civics class style of government is. It requires a certain level of shared and widespread prosperity. We let that die in the name of intellectual purity at our own peril.

I'm so spent on all these serious super hero movies (or really super hero movies in general). No doubt the next fad will get equally annoying but can we please get started on that sometime soon?

Understood and I appreciate the clarification regarding juries versus the judiciary. That is a different beast and you're right, to the extent it isn't necessary to get at the facts, judges should be diligent about not bringing stereotypes or biases into questioning.

@damon I think your point about people doing what they perceive to be in their best interest regardless of what is right or wrong is true. However, I also think there are a lot of assumptions about what third parties really do and don't know about things that happened behind closed doors when this argument is made . My suspicion is that these decisions are really coming down to popularity contests.

You and I are certainly in agreement regarding investments in the war on drugs and police militarization. That is money that could be much better spent. As I stated earlier in the thread, I agree that the incentives need to be changed to prioritize investigation and prosecution of violent and other serious crimes, instead of high volumes of arrests related to vice and quality of life issues.

The rape kit issue is a complicated problem and I do agree that it needs to be addressed. That said, every untested kit is untested for a different reason. Sometimes it really is an issue of prioritization (which needs to be fixed), but other times it's because there isn't a suspect, and there are quite a few instances where the fact that sex occurred isn't in dispute (the issue at trial is consent) and therefore there isn't a reason to do the test. The state needs to be able to prioritize cases it is most certain it can win and to the extent some kits remain untested for that reason I am not disturbed by it. Again, that doesn't mean that there isn't a problem here but I don't think that the volume of untested kits in itself tells the whole story.

Regarding juries my experience is different and we will, I think, still need to agree to disagree. I started my career as an attorney interning with a circuit court judge then at a small firm where the bread and butter was criminal defense (for clarity this was a very brief stint that barely registers in what I do now so I do not want to give the impression I spent years in the trenches as a trial lawyer, I have not). However I would wager that I've spent more time than most in court rooms during (and participating in) criminal proceedings. While every jury and juror is different, the prevailing bias in my experience is in favor of the state. The vast majority of defendants are not wealthy, socially connected, or particularly sympathetic. Your average person tends to think that if the defendant didn't do something wrong then the police never would've picked him up in the first place.

The dynamic may (and I stress the word may) be a bit different in something like the Ghomeshi case where we're talking about someone with wealth and celebrity, but those cases are not the norm. In an environment where we already criminalize too much and incarcerate too many (a disproportionate number of whom are poor and/or black) I can't get on board with attacking the presumption of innocence. Even the privileged shouldn't be punished if the state can't prove their guilt, but as always the real burden of it would (and already does) fall on the disadvantaged.

This seems about right. Official Washington is off the map and culturally inaccessible for most of us who live in the metro area.

@maribou Ok, I'm going to go point by point (and if I miss something please feel free to call me out, I've asked tough questions on the thread and have no intent from shying away from yours).

Regarding whether or not the courts protect women, I think that depends greatly on the context and the woman. However, when it comes to victims of crimes I think that expecting criminal courts to act as instruments of vindication is asking something that they aren't set up to do and probably can never do. Courts exist to make a determination as to whether or not sufficient evidence exists for the state to enforce an outcome of some kind. In the criminal context, it's whether or not the state has sufficient justification to deprive someone of their freedom (and down here south of the border, sometimes their lives). The victim is not a party to these proceedings, and though they're often the trigger for a prosecution and present evidence, given the larger considerations of due process, the law cannot treat victims as an interested party in the legal sense. There's a long history of arbitrary and horrible abuse at the hands of the state in the name of enforcing criminal law and for that reason I think we need to be very careful about undoing the protections we inherited from the Enlightenment, no matter how heinous the accusation, lest we unleash other types of injustice.

This notwithstanding, I do not think that victims of crime should be without assistance and recourse. There are civil avenues where many victims are able to recover from their attackers, even where there was not sufficient evidence to convict criminally. I also think it's important to have robust public services to allow people who need it an avenue of escape. I don't think those services should be contingent on anyone being convicted of a crime. We do, at best, a very inconsistent job of this now, and I am in favor of efforts to make them better.

Regarding how people should treat someone who is acquitted or who can't be convicted of a crime, I am indeed skeptical of efforts to establish a social norm in which people who aren't convicted of a crime are still treated as pariahs (this is how I read the post you linked to). I think establishing such a norm is more likely to create a lot of Boo Radleys than it is, to say, force a powerful person out of public life in disgrace. I also think (as I stated above) that setting such a norm harms our ability to have a fair criminal justice system by de facto destroying impartiality, to the extent there even is any.

That said, I do think people (as the author does), must be free to advocate for others to disassociate with anyone for any reason. If people want to listen that's their business, and in some instances it may well be completely justified. She's in the right to do it, but I don't think people who chose not to listen are any less in the right (absent some other inside information).

Regarding the Ghomeshi case itself, it sounds like the state lacked evidence, and all of the victims had serious credibility problems (the e-mails disclosed would seem to me to render conviction, at least at this particular trial virtually impossible). Does that mean he's innocent? Of course not, but it could all just as easily be gossip and hearsay. The fact that there are multiple accusers and a history of rumors doesn't mean anything (again, my understanding of the e-mails is that the accusations at issue in this trial were at least somewhat coordinated). Now, maybe he is really a bad guy who has managed to get away with some horrible things, but there's also the lessons from the Crucible, or for a more recent, real life example, the McMartin preschool trials. Without convincing evidence I give the benefit of the doubt.

Lastly, regarding my tone and posting style, I did not intend to say anything about your personal life, past experiences, or otherwise, and I am sorry for appearing that way. I try to be as direct as possible, especially with viewpoints that differ from my own. I do that because I've always thought that was the best way to show that an argument is being respected and taken seriously. I only used the word "anecdote" in the sense that I was looking at your story as anecdotal evidence about the broader topics. It was not meant to imply that I didn't take it seriously or as a slight. I like to debate policy and can see how that approach might seem insensitive when it comes to this subject matter. Again I did not (and do not) intend to be mean-spirited or have any ill-will.

Just so you know I appreciate the time you took to write this and will respond when I get home (phone isn't ideal for addressing that many points).

The article argues that the courts aren't protecting women. That is an assertion about the legal system and the law. It advocates 'cutting people off' in their private opportunities when the courts dont convict or there isnt enough evidence to bring charges. I discussed that above.

Looking at the piece from an angle you don't like or asking people about questions that I think are begged by the post and/or other comments is not derailing. I don't see how anything I've said is outside of the usual spirit of discussion on this site.

I read the article. I regularly follow developments in criminal law and am familiar with the details of the Jian Ghomeshi case and background on his career with the CBC.

The point I'm making is plenty valid. People often advocate changing the law or, as in this article, social practices in the wake of acquittals of this nature thinking they'll finally get the Ghomeshis, or Cosbys, or Roethlisbergers (or whichever other celebrity accused of using social status to victimize people). I think that's understandable but ultimately misguided.

I think the fact that you were so quick to make that assumption as opposed to engaging substantively only illustrates my point. It's an emotional topic but that doesn't mean we shouldn't at least try to deal with it rationally.

Without getting into the question of actual innocence, and assuming that the burden for convicting someone of rape could be lowered without inflicting a mortal wound on due process generally (which in itself is naive), what makes you so sure that it'd be the powerful who would be punished? More likely the fallout would be along familiar lines of class and race.

I can't speak to your anecdote but to the extent prioritization of violent felonies can take a backseat to more easily resolved vice cases then we aren't in any disagreement. The incentives should be on successful investigation and prosecution of violent crime and property crimes as opposed to just number of convictions. Still the state almost always has a major advantage in plea bargaining due to harsh sentencing guidelines. The government has more than sufficient capability of convicting and incarceration people.

I guess I'm not really understanding. Are you suggesting people should have their employment restricted because of gossip?

I can see how a victim of a violent crime would want to avoid the assailant but until there's proof a crime even occurred it's all just question begging. That isn't favoring the accused over the accuser it's favoring a requirement that facts are established before someone is sanctioned.

No disagreement from me on any of that and I have no objection to increased resources to support victims of crime which are removed from the criminal justice system.

I do think we have to be careful about the idea that we can treat presumption of innocence as merely a burden of proof issue at trial. The article seems to argue that an accusation should be sufficient to make someone a social pariah regardless of evidence or investigation. I disagree with the apparent presumption that such an approach can be separated from the justice system, which is itself inherently political. The idea that juries are impartial or above outside influence is a legal fiction.

So... the state should punish when there isn't sufficient evidence to support conviction...? And when there is substantial evidence suggesting collusion between the accusers? Is that only for rape accusations or does it go for other crimes too?

I don't understand where this idea that you can't get a conviction for a sex crime comes from. When those guilty of heinous crimes go free it's unfortunate but I find the idea that a lot of violent felons are being acquitted in the age of mass incarceration to be baffling.

In short, culture Trumps religion.

There's a website dedicated specifically to that issue (http://photographyisnotacrime.com).

Even assuming the individual was rude or committed some minor infraction that doesn't make resorting to a use of force acceptable. We need to have higher expectations of public servants. There shouldn't be anything controversial about the idea that people shouldn't risk being thrown around during routine interactions with law enforcement.

Our culture rewards self-righteousness and technology has given us a world where expressing it to an enormous audience is easier than peeling an orange (or taking a pre-peeled one out of a container).

Obviously Kos can do what they want but I do wonder if people/publications with that attitude ever stop to ponder their own roles in the rightward drift of the parameters of what is considered legitimate debate over the last 30-40 years. Yes there are some important exceptions like rights for homosexuals but you never see the Republicans bent on knee capping their right flanks the same way centrist Democrats seem to be towards the left.

The extremes define the center and I think a big part of the reason there is minimal difference between the parties on such a broad range of issues is because centrist Democrats are willing to keep chasing a middle ground defined by conservatives. The only real brake on it is when elements of the right flirt with ideas that became offensive to most people's sensibilities after the 60's (like overt expressions of racism).

I have no opposition to that type of conduct remaining criminal and the organizations that run it being shut down. Imperfect but probably the best we can do.

I've always thought this response (Sweden's) was in itself sexist. It rests on Victorian notions of women as helpless victims who wouldn't sell their virtue but for desperate circumstances and/or coercion and men as inherently sexually aggressive and predatory. The better solution is a safety net combined with regulation sufficient to keep the transaction a free choice for the participants not more criminalization and entrenching backwards ideas about female sexuality.

You're exactly right and it's why Trump will continue to surprise the media and those with at minimum upper middle class sensibilities. Trump's rhetoric is ugly and his policy agenda is incoherent. What his critics fail to do is try to think about how the world looks from the perspective of a white, blue collar male without higher education in a globalized economy. He's giving a voice to people who perceive themselves as the losers in the future United States.

Interestingly I think the only other campaign that has an answer for those voters is Sanders but there may be a cultural divide that can't be bridged.

Regarding E3 I do find the destruction and corporatization of colleges and the surrounding towns to be a sad phenomenon. My alma mater (UMD) never had what I'd call a great college town (being tucked inside the beltway in DC sprawl limits it) but over the last 10 years its rapidly changed from greasy diners and dive student bars to squeaky clean private high rise housing and chain restaurants.

I never thought I'd be such an old man in my 30s but whatever happened to living in a shitty rented room, trying to make rent while studying and drinking swill? No wonder kids today can't adult without a safe space.

I've read that as well and wonder if this might not still have ended in acquittal but for that information. At the very least the sentence wouldn't have been as harsh.