What’s All This Then?

“An avidity to punish is always dangerous to liberty.  It leads men to stretch, to misinterpret, and to misapply even the best of laws.  He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”  — Thomas Paine, Dissertations on First Principles of Government (July 7, 1795)

Like most law students in America, I’ve studied the law for three years.  In that time, I have seen nearly every rule of decision that I thought made sense whittled down to nothingness by a federal court system that seems hell-bent on making the Government’s job in criminal prosecutions as easy as possible.  Judicial remedies once deemed integral to protecting fundamental rights have been reinterpreted, redefined, marginalized, perforated, and otherwise malformed to the point where they no longer bear any resemblance to their former selves.  Once robust legal rules that shielded every citizen from the vindictive prosecutor, the corrupt cop, or the impressionable jury have been papered over with absurd legal theories and ad hoc rationalizations.  Courts have become so deferential to the Government-as-defender-of-the-public-interest that even when the Government loses, it wins.

And so here we are.  “Mass Incarceration” is now the name of the game.  We now live in a nation that incarcerates more people—by an absurdly large margin—than any other country in the world.  The U.S. now incarcerates more people than Communist China, which has five times the population.  It is a system born of relentless fearmongering from politicians—going back to Nixon and moving up through the Clinton years—who sacrificed the rights of criminal defendants at the altar of political expedience.  Nixon used everybody’s favorite brand of dog-whistle racism (“law & order” politics), to scare White middle class voters into thinking they were under attack by an underclass of Black hooligans.  At the same time, he declared illicit drugs to be “public enemy number one,” condemning an entire generation of non-violent drug offenders to the torturous, violent institutions we colloquially refer to as prisons.[1]  Reagan doubled down in the 80’s with the Crack Scare, the Anti-Drug Abuse Act of 1986, and tripled down with the Anti-Drug AbuseAct of 1988.  In fact, The Gipper did so much damage during his time in office that you should probably just go read a book about it, since there’s no way I could summarize it here.

What’s the point of all this?  The point is that the deck is now stacked in the Government’s favor.  In every conceivable way.  I have not met a single Defense lawyer who doesn’t complain about Brady violations.  Prosecutors who commit misconduct are rarely punished.  Police regularly lie on the stand and get away with it.  And when you try to hold the Government accountable for hurting innocent people, more often than not, the door gets slammed in your face.

And so this blog, more than anything else, is about accountability.  It’s about proving why Thomas Paine was right when he wrote the words quoted at the beginning of this post.  It is, to borrow a phrase from William F. Buckley’s National Review, about “standing athwart history” and yelling “Stop,” so that we might preserve those legal protections that we have left to preserve our freedom.

But it’s also about trying to make sense out of all the tiny contradictions in the law that decades of Government-friendly jurisprudence has created.  I don’t intend to create yet another vapid corridor wherein the author prattles on about current events.  I’m hoping to make this substantive in a way that matters to actual legal practitioners.  So things around here will get a little wonky from time to time.  But even so, I imagine Joe Six-Pack will be able to get the gist.  It’s an effort to be at once useful and agitational.   Practical and polemical, if you will.

If you’ve made it this far, congratulations.  If I were you, I would’ve long ago abandoned this rancid pedantry for a glass of seltzer and the Northeast’s finest rotgut.  Until next time, keep your stick on the ice.  We’re all in this together.


[1] As Emily Dufton wrote in 2012, “Nixon launched a drug war that framed drug users not as alienated youths whose addiction was caused by inhabiting a fundamentally inequitable society, but as criminals attacking the moral fiber of the nation, people who deserved only incarceration and punishment.”  http://www.theatlantic.com/health/archive/2012/03/the-war-on-drugs-how-president-nixon-tied-addiction-to-crime/254319/.

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