Most conservatives bang on about how liberals are about coddling criminals, or against the rights of the victims. And it can sure sound that way if you aren't listening carefully.
In fact, it's interesting that a lot of feminists leave aside many of the same civil liberties they'd otherwise support when it comes to domestic violence or rape. It's like we've bought into the conservative idea that the only function of those rights is to protect the accused.
No doubt about it that the right to an attorney, the concept of the burden of proof being on the government to prove guilt, and habeas corpus all do that to some degree. You can't just lock up everybody you "know" is guilty.
But it the very fact that you have the right to an attorney and to see evidence means that criminals are more likely to be convicted for a real, concrete act. That means you got the right person.
How'd I get there? Well, we need to look at why our justice system is set up the way it is.
One reason we have an adversarial system (and this is true of much of the world) comes from two strains of thought.
The first is that the government might have an interest in prosecution and conviction that isn't related to whether anyone actually did anything. Even with perfectly honest people running the show, there might be incentives to convict and jail people that have zero to do with criminality. This can be because there are political crimes involved. But it can also be because people just plain make mistakes, but aren't willing to admit it. This is a basic human failing, even for honest and upright prosecutors. Who doesn't want to win?
The second is something borrowed from the scientific method. That's making sure that your evidence actually shows what you think it does. That's why the rules of evidence can get complicated. It's similar to some scientific studies, where you try to set up experiments to test a hypothesis. A good researcher tries to "factor out" influences that are tough to measure or can't be measured within the scope of what he's trying to prove.
For example, whenever research on drugs is submitted for review, there is an elaborate set of protocols to make sure that the drug does what it says it does. You need to check that the patient's diet, or their previous medical problems, or the air they breathe, don't have an effect on your results. You need to ask if the researcher might have been biased to a positive result--because he's human.
That's why it takes a long time to do clinical trials, and why effectiveness is so often expressed in percentages (which honestly, are so often misunderstood by reporters covering this that they get misrepresented routinely). It's because you want to make sure that even perfectly honest research didn't make some elementary mistake.
In law, the situation is a bit different. We have two advocates, the prosecution and the defense, and the idea is that their competing visions will sway a jury on the weight of the evidence presented. It doesn't have the same rigor that scientific research does. That said, the basic plan is similar; the rules of evidence are complicated because you want to make sure that the case against the accused is damned well unimpeachable. And not only that, comprehensible to ordinary folks.
So, for instance, a perfectly honest cop might take the word of an informant, assuming the informant's honesty. He might not think the informant has any reason to lie. But he might have such reason unbeknownst to the cop, who might gloss it over because he knows the suspect is guilty. There isn't any dishonesty here, just ordinary human behavior.
When we force the police and the FBI to adhere to certain rules, it isn't just to make sure criminals get off; it's to make sure we know exactly what we are looking for. If I go through your personal files long enough I can connect you to the Kennedy assassination -- wasn't your grandpa there? You must know something! That's why we ask for specific targets in search warrants. If the police chased every single lead like that they'd get nowhere.
More seriously, it makes sure that when we are accused of something, we are accused of doing a real, concrete act. I can think and fantasize about terrorism all day long. I make tasteless jokes and when I get angry I say things. But that has no bearing on what I might do. When I say "Screw George Bush" it doesn't mean I want to do it. A prosecutor has to show that someone did something real and took real steps. That's pretty darned important.
It's also why we ask that evidence not be kept secret from the defense. The defense's job is to poke holes in the prosecution's argument in part to make sure they have the right guy.
After all, mistakes get made. Look at all those people who got exonerated because of the evidence of DNA. In most cases the prosecutors weren't being dishonest, per se, they were just doing their jobs as best they know how.
If you want to catch criminals, and you want to know you have the right one, it's vital that you know that your evidence is good. That's what our adversarial system does. A no-fly list is such a crappy tool for finding anybody precisely because there's no self-checking routine like that. How many Mohammeds are there out there?
It should also be noted that the majority of cases are decided by plea bargains. Lots of people hate the plea bargain system because they think it somehow "lets people off" for a lesser crime. But think about this: would you take a chance on a trial when there is a better than even chance you'll be put away? I don't think so. The prosecutor automatically has a lot of leverage, and the vast majority of the population simply can't afford to fight on equal terms. We can't all hire Johnnie Cochran. As the old saw goes, Al Capone went down for tax evasion. Not sexy, but he was off the streets and the evidence was rock solid.
Is it perfect? No, and the circus that was OJ Simpson shows that it isn't. And no, I'm not saying OJ was innocent or guilty; I'm just saying that the whole trial was a mess.
But it brings up something that we often forget after watching too many episodes of Law & Order: real life is messy. I've sat on a jury and it isn't hard to lose track of the evidence presented in a long, grinding trial. And this for a relatively minor crime. The jury wants the lawyers to get to the point; the traditions and rules prevent them from doing that a lot of the time. It's nowhere near as dramatic as it is on TV.
When prosecutors do decide to try a case, the civil liberties we have help them bring stronger cases to the table. And help them make sure their own biases don't affect the case at hand, whether they like it or not.
Before Miranda, cops could basically torture a confession out of someone if they wanted; there was rarely anyone the wiser. They weren't doing it because they were evil--they were doing it because they knew the guy was guilty, based on their experience and the evidence before them. That doesn't mean they were right.
So here's what I want to ask the candidates in the next debate:
What role does our rights as accused play? How important are they?
Does this apply to all accused by the United States?
Would you repeal the Military Commissions Act?
Do you believe that security and civil rights are an either/or choice? Why?
Have you any evidence that depriving someone of their rights helps solve crimes?
How would you repair the trust between minority communities and law enforcement?
Let's see how Hilary and her fellow candidates answer those. I'm interested. Aren't you?
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