Over at Crime and Federalism you'll find the best tag line in the blogosphere.
Because everything I was ever told was a lie.
Of course, it's not just everything you were told.
Consider, if you will (and if you won't, you might as well stop reading now), what you know.
In March, I wrote about False Justice: Eight Myths That Convict the Innocent, Jim and Nancy Petro's book about, well, about eight myths that convict the innocent. You know: Nobody confesses to what they didn't do; eyewitnesses are reliable; all mistakes get promptly corrected, that sort of thing. Petro's is a personal, anecdotal story of how Jim (former Ohio Attorney General) came to learn that our criminal justice system has a tendency to screw up.
Around the time I was writing about Petro's book, Harvard University Press published Brandon Garrett's Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Garrett, a law professor at the University of Virginia, plows much the same ground as Petro though his approach is different. Garrett studied each of the first 250 DNA exonerations across the country, reviewed transcripts and opinions and the like and coded to figure out just what went wrong in each case. The result, of course, is that he learned how innocent people confess, eyewitnesses are unreliable, mistakes don't get promptly corrected.
Different styles, different approaches. The books work wonderfully together to show where and how the system screws up. Everything you were told, everything you knew, is a lie.
In fact, though, it's not DNA exonerations or Petro or Garrett that got me started quoting the C & F tag line. What got me started today was an item in Radley Balko's Morning Links today leading to a headline on an article by Maia Szalavitz at Time.com. Because you know, we've now become a post-racial society. Racism is dead. Which you've been told. And maybe you know. And, oh, it's bullshit.
The headline?
Study: Whites More Likely to Abuse Drugs Than Blacks
Let's be very clear. The study, by Dan Blazer who's a professor of psychiatry at Duke and using data from over 72,000 interviews conducted by researchers from the National Survey on Drug Use and Health, doesn't just say that whites are more likely to abuse drugs than blacks. So are Native Americans, Hispanics, and people of mixed race. And it turns out that whites also, by the way, are more likely to abuse drugs than Hispanics. Here's the breakdown.
- Native American 15.0%
- Mixed race 9.2%
- White 9.0%
- Hispanic 7.7%
- African American 5.0%
- Asian & Pacific Islanders 3.5%
You didn't know that. In fact, you were told, and probably knew, it was otherwise. After all, blacks are, as Szalavitz notes, arrested for drug crimes at 10 times the rate of whites. So it just stands to reason makes no rational sense at all that they're about half as likely actually to be doing this stuff as whites.
In September I wrote about Justice Powell's opinion in McCleskey v. Kemp. McCleskey had argued - and presented compelling evidence - that the capital punishment system in Georgia (which is the state that sentenced him to die and eventually killed him, but the same principle applied everywhere) was so infected by racism that his death sentence (and by extension everyone else's) was tainted and had to be vacated. Powell didn't dispute the claim, just the remedy. (He said there was none; a position he repudiated after he retired from the Court.)
McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Solem v. Helm, 463 U. S. 277, 289-290 (1983); see Rummel v. Estelle, 445 U. S. 263, 293 (1980) (POWELL, J., dissenting). Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant's facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey.
And I offered a rough translation into simple English.
[I]f the Court were to acknowledge that racism so fucked up the death penalty system that it was fundamentally unfair, then the Court would have to admit that the same was true of the entire criminal justice system. And beyond racism, the system is improperly affected by all sorts of considerations. If McCleskey won, the whole damned arbitrary and discriminatory criminal justice system would collapse. The system was rotten to the core. Either we accepted it that way or we'd have to fix it. And really, it was beyond repair.
McCleskey was decided in 1987. Yesterday, seven members of the Court indicated that they were insufficiently bothered by overt racism to review Duane Buck's death sentence.
And now we know what we probably should have guessed but what is exactly the opposite of what we were told.
Racist then. Racist now.
Plus ça change, plus c'est la même chose.
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