Duke and Prosecutorial Hazard

The recent dismissals of all charges brought against the Duke lacrosse players—accompanied by condemnations of the prosecutor who originally brought the charges—reminded me of something said in 1940 by Supreme Court Justice Robert H. Jackson, who later presided over the Nuremberg trials.

 

Jackson said “The prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous…The citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law, and not factional purposes.”

 

Whatever other lessons we may learn from the sorry spectacle at Duke—lessons about race, privilege and resentment, or the ease of playing to an ever-more sensation-seeking media—surely the importance of prosecutorial integrity is the most important. Prosecutors are officers of the court; they are lawyers for “the people.” If they do not place their duty to the truth above personal or partisan considerations, they can do enormous damage both to the lives of individuals and to public trust in our institutions.

 

It isn’t only Duke. In Wisconsin, a Republican U.S. Attorney launched a corruption case against an obscure state bureaucrat, and even got a conviction. It was an election year, and not surprisingly, the case was featured prominently in attack ads against the Democratic governor. After the election, the appeals court threw the case out.  The opinion, written by (exceedingly conservative) Judge Easterbrook, called the evidence "beyond thin" and the case “preposterous.”

 

The Wisconsin case, even more than the travesty at Duke, provides a telling example of why the current Congressional investigation into the Justice Department’s firing of eight federal prosecutors is so important.

 

The previous Congress ignored numerous warning signs about politicization of the Justice Department—from the hiring of attorneys with few qualifications and little experience, to the departure of career lawyers who had served both Republican and Democratic administrations. Seasoned career lawyers were overruled so that the department could reverse prior policy in voting rights cases. The list goes on.

 

Then there is the curious “coincidence” that several of the fired prosecutors came from battleground states that will be critical in the 2008 election: New Mexico, Nevada, Michigan, Washington and Arkansas.

 

It is easy for citizens numbed by the constant drumbeat of accusations and counteraccusations and disgusted by the political gameplaying and outright corruption of the last several years to shrug off the situation at the Justice department as one more fight between equally unpleasant political insiders. But that would be a mistake, because we all have an important stake in the independence and integrity of the men and women entrusted, literally, with life and death decisions.

 

Once we lose confidence in the probity of those officers of the court, once we suspect that they have based the decision to pursue (or overlook) behaviors on political calculation rather than on the evidence, we will have lost what John Adams memorably called “a government of laws, not men.” We really will have lost America.  

 

 

Fits and Starts

In last month’s column, I wrote about an unexpected victory for equal rights—the defeat, or at least the temporary derailing, of a same-sex marriage ban in very red Indiana. Since then, at least two other states have enacted civil union statutes, and polls suggest that the saliency of the issue and its utility in energizing the GOP base have declined.

 

But then there is the other side of the coin, the episodes that remind us that progress does not occur in a straight line, but in what my mother used to call “fits and starts.”

 

In Richmond, Indiana, at virtually the same time our legislature was showing signs of an emerging sanity, a young man named Joe Augustine was beaten with a rock and left with a fractured skull as he was leaving a rehearsal of the Richmond Civic Theater’s production of “The Laramie Project.”  That play, as most readers of this column probably know, is based upon the horrific beating and death of Matthew Shepard.

 

As I write this, there has not been confirmation that this was a hate crime, although it seems unlikely that the choice of victim was merely coincidental. And even in Richmond, in the wake of this savage beating, the news is not all terrible. Townspeople have rallied to support the young man and his family. Businesses have put up signs; the community held a fundraiser to help with medical bills. And the rest of the cast—in the grand old tradition of “the show must go on”—continued with the play’s production.

 

Two steps forward, one step back. That’s the way humans progress. But we do progress. Over the nine years that I have taught university undergraduates, I have watched a sea change in their attitudes toward their gay classmaters. Most of today’s college students literally do not understand what the fuss is all about. In contrast to their parents’ generation, homosexuality—like sexuality in general—does not make them uncomfortable. Most have gay friends, watch “out” entertainers, and tend to attribute anti-gay bias to ignorance at best or emotional problems at worst.

 

Much of this attitude change can be directly traced to the “coming out” movement, and the familiarity with gay friends and neighbors that has ensued. One of the persistent mysteries of human behavior is our tendency to fear that which is different and unknown, despite ample evidence that such fears can be—and often are—pathological.  In a healthy society, we would divert the energy and resources being expended to deprive gay people of their civil rights to an effort to identify and help the angry and dangerous who walk among us.

 

Of course, in a healthy society, we would also divert the resources being flushed down the toilet in a failed drug war to public health measures aimed at helping drug abusers quit. In a healthy society, we would not spend trillions of dollars and waste thousands of young lives fighting a war of choice in Iraq. I could go on and on, but there is little point. I often wonder whether the people who are so angry at the prospect that two men or two women might create a loving and supportive family are equally upset when children go to bed hungry or abused, when we cannot find the public resources to improve our schools or to pay our police and fire personnel adequately. Is their “morality” equally offended when our brave young soldiers come home from a fool’s errand to face poor or indifferent medical care? And speaking of medical care, where are these guardians of public morality when we discuss the 47 million Americans who are uninsured? Isn’t that a sufficiently moral issue?

 

Fits and starts. It would be nice if we were beginning to recover from the fits and ready to start addressing the genuinely important conditions of our common culture.        

Comments

Death and Taxes

Over the past few years, conservative members of Congress have devoted considerable energy to efforts to repeal the Estate Tax. An expensive PR campaign has hammered at the awful unfairness of the “Death Tax.” People unfamiliar with the tax and its application have been led to believe that heirs are routinely having to sell the family farm to pay confiscatory taxes. They’d probably be surprised to learn that 99 percent of estates pay no estate tax at all. 

 

Among the 1% of estates that do pay these taxes, the "effective" tax rate — that is, the actual percentage of the estate that is paid in taxes — averaged about 20 percent in 2005 (the latest year for which IRS data are available), far below the statutory rate of 48 percent. 

 

Although few families pay, the Center on Budget and Policy Priorities calculates that repeal would reduce tax revenues by a trillion dollars in the first ten years. That’s because the 1% of Americans who do pay the tax are very, very wealthy.

 

Meanwhile, as policymakers have argued whether the Estate tax imposes an unfair burden on our wealthiest citizens, they have been shockingly unmoved by a far more confiscatory and widespread “death tax”—the requirement that elderly citizens entering nursing homes impoverish themselves before Medicaid will pay for their care.

 

Millions of older Americans who have worked and paid taxes their whole lives cannot afford the ever-escalating costs of long-term care. Very few insurance policies cover these costs, and those that do are far too expensive for most middle-class retirees.

 

Before these vulnerable Americans can receive the services they need, federal law requires that they “spend down” their assets. That is, they must apply virtually everything they have to payment of the initial nursing home charges. Once they no longer have assets, medicaid will pick up the costs. There are few exceptions: prepaid funeral expenses, or a home that remains occupied by a spouse. Over six million elderly Americans are currently receiving Medicaid. All of those seniors have thus paid the “tax”—i.e. the spend-down. Its “effective rate” is 100%. 

 

My mother spent her last years in a nursing home. Many of the residents had worked hard their entire lives. Like the wealthy, most had hoped to pass their possessions and savings on to their children and grandchildren. Unlike the wealthy, they couldn’t afford estate planners and lawyers to help them shelter their assets and minimize the impact of federal rules. Their savings were gone, and all too often their pride and independence had vanished with the money.

 

Some wealthy Americans believe this state of affairs is wrong. They include Warren  Buffett, George Soros and William Gates, Sr. They have urged Congress to reject President Bush’s push to repeal estate taxes, arguing that "repealing the estate tax would enrich the heirs of America‘s millionaires and billionaires while hurting families who struggle to make ends meet."

 

In other words, agonize less over burdening George Soros, and worry more about wiping out Mr. Average Citizen.

   

 

Comments

It’s a Bird, It’s a Plane…

Crime has become a high-decibel subject of conversation in Indianapolis. From the persistent challenges posed by jail overcrowding, the recent sharp increase in homicides, and the hotly debated merger of the Indianapolis Police and  Sheriff’s Departments, crime prevention has become the topic of the day. And it sometimes seems as if everyone has figured out what we need to do if we are serious about ensuring public safety and fighting the bad guys.

 

We need Superman.

 

Superman—AKA Clark Kent—didn’t just appear after a crime had been committed. No siree. He had x-ray vision and superkeen hearing, so he knew beforehand when a crime was about to be committed, and usually he got to the scene (just) in time to foil the attempt. His response time was outstanding.

 

Just his presence in Metropolis made the city safe. His take-home cape struck fear in the hearts of the criminal class, and deterred many crimes. (Undoubtedly, this ability to keep the crime rate down was the reason there was always room in the Metropolis Jail for the culprits he brought to justice.) Plus, he supplied his own—admittedly idiosyncratic—uniform.

 

Best of all, we didn’t have to pay Superman. He protected citizens out of the goodness of his heart. He didn’t require a funded pension, or health benefits, or fancy equipment. He kept crime under control without demanding a single dollar of our tax money. A simple “thank you” (and perhaps an adoring look from

Lois Lane

) was all he needed. In the language of economics, Superman made everyone in Metropolis a free rider.

 

It may seem silly even to say this, but Superman is fantasy. And no matter how reluctant we may be to inhabit it, we live in the real world.

 

In the real world, even the most diligent police officer is only human. Most of the time, officers will not be able to avert crimes before they are committed, and will not be able to get to the scene within two or three minutes, even if our police force had an optimum number of sworn officers, which it doesn’t. A take-home car may or may not be part of a cost-effective crime prevention program, but in either case, the police are going to need vehicles, guns, ready access to computer records, a crime lab filled with expensive equipment and a certain amount of clerical and staff support in order to be effective. They are also going to need adequate space in the jail to house the bad guys they catch.

 

Being only human, police need salaries. Given the inherent dangers in their line of work, they especially need health benefits and retirement savings.

 

If we truly want to improve public safety, we will have to pay for that improvement through our taxes. The police merger was an effort to achieve economies of scale, to do more with less, but at some point, there are no more places to cut.

 

Superman isn’t going to save us from fiscal reality.

 

 

 

 

 

 

 

Comments

Pursuing Justice

Here in Indiana, in the nation’s “heartland,” the State legislature is replaying a scene that has already been played out in most other states—the addition of an amendment to the state constitution prohibiting not only same-sex marriage, but anything else that might conceivably be considered to confer an “incident” of marriage on same sex couples.

 

Nothing really new here—at least to readers of the Word.  Same ugly arguments, same general hysteria about gays destroying the institution of marriage and ushering in the End of Western Civilization As We Have Known It. The people who are unalterably opposed to recognizing not only the civil rights but the very humanity of gay men and lesbians have once again crawled from under their rocks, and a lot of legislators who certainly know better are deathly afraid that they will pay a price at the polls for doing what is right.

 

All in all, a depressing spectacle.

 

Not that there haven’t been bright spots. For once, some of the state’s largest employers have spoken up in opposition to a measure they believe (with much reason) will adversely affect their ability to hire good people. The faculty councils of our Universities have condemned the measure. And perhaps most surprising and encouraging, every Indiana newspaper that has seen fit to editorialize on the subject has come out against the amendment. When such things happen in Indiana, it confirms the reality of a cultural shift that really will force positive change—eventually.

 

Now, of course, is not “eventually.” So we are being inundated with the sentiments of lovely “Christian” folk who call in to the talk shows and write letters to the newspapers, threatening to boycott the businesses that have—horrors!—extended health benefits to partners of gay employees, or engaged in similarly immoral acts.

 

As I write this, I am preparing to participate in this year’s Passover Seder. (I know that seems like an odd non-sequitur, but hang in here with me.) For those of you who are unfamiliar with Passover, it is a holiday that commemorates the Israelites’ escape from Egypt and the oppression of the Pharoahs that they experienced there. During the traditional dinner, Jews recite passages intended to remind us that—as one repeated refrain says—“we were slaves in the land of Egypt.” 

 

When you have been a slave, when you have been on the receiving end of injustice and tyrrany simply because you are different from others in your society, you tend to take issues of justice and equity seriously. The symbolism of the Seder is intended to remind us not to get too comfortable, not to take other people’s suffering too lightly. The Seder is meant to remind us of our duty to obey an even more ancient exhortation, “Justice, justice must thou pursue.”

 

I don’t know what motivates the people who hate—whether the object of that hatred is Jews, blacks, gays, Muslims or some other category. I don’t know what it is that they find so terrifying about people who are different in some way, or what they find so threatening about the simple extension of equal rights to such people. I do know that real Christians (as opposed to the self-identified, self-satisfied ones who are making the most noise) are every bit as appalled by these expressions of animus as I am.

 

It is pretty clear they haven’t thought much about what it would be like to be a slave in the land of Egypt, or anywhere else (or what it is like to be a gay or lesbian in America, for that matter).

 

They haven’t thought much about “pursuing justice” either.   

Comments