Thursday, August 29, 2019

Representation, Not Redemption


Usually, the uniquely American tendency to insist on a menu of "inalienable rights" beyond any Constitutional regimen comes from progressive quarters, with the significant exception of guns on the right and free expression generally from libertarians.  Recently, some more-right-of-center sources have been a bit more preachy about the Sixth and Eighth Amendments than one might expect on behalf of some particularly monstrous defendants, as if the system would not be working if their ostensible constitutional protections weren't given in direct proportion to their alleged offenses.

Musing in hindsight about granting Jeffrey Epstein bail, or about the perils of the "justice by denunciation" in Epstein's (or any) criminal case isn't remotely worthy of condemnation as,  say, Dave Chappelle's dual declaration that Michael Jackson was innnocent, or, alternatively, that his victims somehow brought it on themselves.  However, even salient points aren't necessarily advisable.  

In musing that Epstein might be alive today had he been granted bail, some key points--both widely known and less known--about the defendant are glossed over.  Epstein's unlimited financial and private transporation resources were widely known; his range of international connections and the depth of domestic officialdom (more than) allegdly in his pocket were not; all that and common sense would mandate remand. The editorial muses that the then ostensibly "excessive" bail mandated that he receive the requisite protection in prison, which he obviously didn't get.  However, his lack of protection in jail had nothing to do with the eighth amendment, but rather a function of a series of bureaucratic snafus.  If one considers that Epstein might have actually paid off people to look the other way, the case against home confinement is infinitely strengthened.

Conrad Black has every reason to rage against an incompetent and malevolent justice system; however that should leas him raging against Acosta's incompetence for going for a result, rather than defending him for getting that "best result" and pretending it was the most just one available.  Epstein's sojourn in jail in Florida further indicates that more could have been done and that local law enforcement at several levels just weren't even trying, and that they knew it. Black also should consider that mob justice often produces the one victim who can bring down the predator: consider what just happened with Epstein at a court hearing where several victims testified after the suicide; Larry Nassar's multiple victims coming forward during his trial and compounding his charges; and the Cosby and Weinstein cases.  Where there is a mob of victims--as there seem to be in all of those cases--mob justice is a prosaic as it is poetic.

Similarly, during the sentencing phase of the Nassar trial, Judge Aquilina came under criticism from some quarters from disallowing Nassar to read his letter, and for essentially deeming him irredeemable.   Some accused her of applying ostensible "liberal" tenets in her denunciations of Nassar and her willingness to express what she hoped would happen to him in prison.  This was/is nonsense, and any conservative should be ashamed to tar such a unique moment in upholding law and order.  

The question asked "Under what conditions does a convict forfeit their dignity?" sounds a lot more like an ostensible "liberal" paints about the mistreatment about "justice involved persons" rather than a theoretically conservative critique of judicial excess.  A conservative should champion a withering condemnation of offensive conduct from the bench, particulary conduct as egregiously beyond the pale as Nassar's.  Aquilina should have been celebrated in conservative quarters. 

Furthermore, any law and order conservative who complains that a "claim that Nassar is beyond rehabilitation was an affront to the dignity unique to every person" forgets that the death penalty does exactly that: determines that a person's continuing threat to public order outweighs any potential redemption.  Some were willing to even afford the Pittsburgh shooter that chance at "rehabilitiation" and were perturbed by the decision to seek the death penalty; but those pleas did not come from conservative quarters.  Furthermore, as most conservative philosophies have very strong links with various theologies, most classical theologies are replete with examples of those "unsaved" and "damned", metaphysically and otherwise, so a conservative refusal to see that some people are beyond redemption would present a further irony.

The Constitution provides for a criminal defendant's representation, and legal ethics demand that said representation be zealous.  It does not automatically provide a defense, and it certainly does not mandate that everyone has a shot at rehabilitation or redemption.  

Offenders have lawyers to "defend" them so that we don't have to.

No comments: