In Our Culture But Not in Our Genetic Code

“Freedom demands a certain risk,” David Shipler wrote last year in The Rights of the People: How Our Search for Safety Invades Our Liberties. It’s a risk, he argued, we are too rarely prepared to take. To make that point Shipler examined breaches in what he called the physical boundary between the individual and the state, guarded by the Fourth Amendment. But Shipler was after more.  He knew that the Fourth wasn't the only Amendment jeopardized by the insistence that safety and security were more important than liberty. So he knew from the start that the "landscape [was] too vast."  So The Rights of the People was just the first volume.

The second volume is Rights at Risk: The Limits of Liberty in Modern America. It's out now, and it's as powerful as the first. This time Shipler focuses his attention on the First, Fifth and Sixth Amendments

Shipler understands the value of a good story, and he tells lots of them. He talks about the Chicago police torturing often innocent suspects to extract confessions from them and send them to prison or better yet (from the point of view of the cops) to the gurney.  And he reports on torture from wherever it was that John Yoo said it was cool for federal agents to waterboard Khalid Sheikh Mohammed because torture isn't really torture unless you're dead at the end and, besides, he was a bad guy and safety and security and who gives a shit about those sorts of niceties anyhow?  Oh, and he looked funny.

In his chapter on false confessions (what? you don't think they happen?), he notes that some two hundred people confessed to kidnapping the Lindbergh baby, and tells how the Central Park Five were essentially gulled into confessing to the rape of jogger Trisha Meili, a rape they didn’t commit.  And then he talks about the Reid technique, a manipulative method of interrogation that has a great track record for getting the innocent to admit guilt.

Clarence Earl Gideon

He begins a chapter on the rights to counsel and especially to effective assistance with the tale of Anthony Ray Hinton who’s been on Alabama’s death row for some 26 years since his trial counsel hired as a firearms expert “a one-eyed retired engineer who couldn’t operate a comparison microscope [and] had jurors laughing in ridicule.” And of course he talks about Gideon.

But it's not just the path breaking cases, the ones that make the headlines. It’s the ordinary, the quotidian. The path is worn now, but ill-tended. It buckles. It gets overgrown with weeds. You can follow the trail, but you may trip and stumble. And you're apt to ask why bother because it's just there and doesn't look all that much different from the surrounding terrain. Because these things really do happen every day. Maybe there's a lawyer, but barely because he's asleep, which is maybe dramatic enough to get noticed (see here, for instance), though sadly it happens often enough that the press often doesn't bother covering it and the courts too often blow it off).  And maybe there was a confession to what he didn't do and maybe he was convicted (or not or got really lucky and had the charges dismissed or really really lucky (following a run of awful luck) and got post-conviction exoneration. Or not.

Mary Beth and John Tinker

So while Shipler tells us about the famous (at least to lawyers and their hangers on), there are the others. Along with Gideon and Mary Beth Tinker, he speaks of people you’ve likely never heard of: Clemente Zavaleta and Mohammed Maddy and Barry Reingold, for instance. Theirs are the more typical stories of ordinary men and women. Some committed crimes. Some offended sensibility. Some seem to have been random victims of happenstance.

Of course, stories are not proof, and Shipler knows better than to pretend they are. Instead, he uses the stories to animate the argument, to provide the examples that show not only what can happen but what does. They are tied to the executive, legislative, and judicial decisions that spawned them. And their very ordinariness is part of the point.

Shipler makes that explicit when talking about the oppressive caseloads and lack of resources facing too many public defenders and appointed counsel.

The problem is even more insidious than the dramatic cases convey. The defects are nourished not just by individual malice but by systemic failure, an uncaring set of priorities that unbalances the adversarial process.

It’s not, after all, that in the aftermath of 9/11Shrub told Ashcroft that he hated the Fourth Amendment and wanted it ignored. (Really, that's not what he said.)  It’s that W simply didn’t consider the Bill of Rights when he said, “Make sure this never happens again.” The effect on the Fourth Amendment was consequential, but not precisely intentional. Similarly, when the courts allow police like Detective Tom McKenna, “to use guile and ruse," they probably expected (if they gave it even a moment's thought) that he’d do that (“and we do,” he added). But it's unlikely that expected that he'd use them to get false confessions from the Central Park Five. The courts were just thinking, if they were thinking at all, about how to get the bad guys.

The erosion of civil liberty is gradual, a slow eating away at our rights, a point Shipler makes nowhere more clearly than in his chapter on free speech and press in schools. Justice Fortas gave us  sweeping words in Tinker.

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

But they give way when a high school student in Connecticut called her school principal and the superintendent “douchbags” and was punished by being denied the chance to run for senior class secretary. Then-mere-Judge, not-yet-Justice Sotomayor was part of the unanimous Second Circuit panel that ruled against her.

Shipler’s is, ultimately, an exhortation. 

The Bill of Rights is in our culture but not in our genetic code. . . . [Unless] taught and exercised until it becomes an intuitive ingredient of being American, it gradually succumbs to peer pressure, institutional hierarchy, and apathy.

And then, as he doesn't quite say, it dies.

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Thanks to the National Association of Criminal Defense Lawyers for sending me a review copy of Rights at Risk.  A version of this review will appear in The Champion, NACDL's monthly magazine, sometime this summer.

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