Rallying for a Plea Bargain

Update. Since posting this, I’ve been informed that the purpose of the Rally is to argue for dismissal of the charges–not a plea bargain. Bei Bei takes the (eminently reasonable) position that she should not be branded a felon. As one of the commenters has pointed out, this is the sort of case that does a real disservice to the cause of both criminal justice and mental health, by conflating the two. Did this young woman make a very bad decision? Yes. Did that decision harm both her and her unborn child? Yes. But those facts , without more, do not suffice to prove a crime. 

The case of Bei Bei–the young Asian woman who is being prosecuted for murdering her unborn baby–raises a number of questions.

The facts that are known are relatively simple: A young woman, pregnant and deserted by her lover, took rat poison in an apparent suicide attempt. She left a note for the faithless lover, saying she was killing herself and their child. She lived, but her baby died. The prosecutor charged her with murder, and refused to reconsider that charge even after an expert witness testified in a hearing that the still birth of the baby could not be proved to have been a result of the poison.

The case has become a high-profile cause for womens’ rights groups, who have (correctly, in my view) pointed out that a prosecution on these facts runs the risk of “criminalizing pregnancy,” and setting a dangerous precedent; it threatens to identify pregnant women as a separate and unequal class of citizen and to discourage pregnant women from seeking health care for depression or drug addiction.  They have held rallies in an effort to pressure the prosecutor into dropping the case, or at least plea bargaining for a lesser charge.

This Saturday, at the City Market at two, there will be another rally.

There are a lot of unanswered questions about this case, which has become a very high-profile debate about both the exercise of prosecutorial discretion and the propriety of conducting a criminal defense in the media.

I have a lot of respect for Marion County Prosecutor Terry Curry, but–unless he knows something about the facts of this case that he has not revealed–I can’t understand his decision to spend public resources pursuing this case. The purpose of the criminal justice system is public safety. (I know that a good portion of the electorate prefers a different, more punitive approach–make the bad guys suffer!–but the Indiana Constitution sets a more measured goal.) This young woman presents no threat to the public. She is highly unlikely to be a repeat offender. She’s a troubled individual who made a very bad choice; is punishing that bad choice really where we want to spend our officials’ time and the public’s money?

It is unfortunate that this case has been so highly publicized; perhaps if the media had paid less attention to it, the prosecution would have felt more comfortable resolving it short of trial. But here we are. So the national organizations that have come to Bei Bei’s defense have announced Saturday’s rally, presumably in hopes of pressuring the prosecutor to reconsider. I think it is more likely that the additional publicity will simply harden his resolve, but I recognize the need to draw public attention to the policy question that is at the heart of this case: how should the prosecutor exercise his discretion?

What makes us safe?

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Missing Souter

I remember when the first President Bush nominated David Souter to the Supreme Court. I listened to the televised session when he appeared before Congress (I think it was CSPAN–it was certainly past my bedtime), fearful after the disappointment that was Clarence Thomas, and I was impressed by the erudition of his responses. I wasn’t disappointed by his subsequent jurisprudence; agree or not (and usually I did agree), his opinions were always reasoned, nuanced and respectful of both the litigants and the Constitutional process.

I was sorry to see him step down from the Court. During the recent coverage of oral arguments, I was struck by the mediocrity of Alito and irritated by Scalia’s usual grandstanding, and really regretted Souter’s absence.

Yesterday, I had a chance to see him in person. I was attending a small conference on civic education at Harvard, co-sponsored by the Law School and former Justice Sandra Day O’Connor’s iCivics, and Souter was one of the panelists–along with Lawrence Tribe, Justice O’Connor, and Kenneth Starr. (Talk about your heavy hitters!)

Justice O’Connor said very little, but Souter was eloquent. In a day devoted to necessary technical issues–how do we improve civic education, what are the barriers we face, what is the necessary content of an education that will encourage informed, active citizenship–he cut to the chase: America has a tension between the rights of the individual and the common good. That’s a healthy tension. But we must guard against times when we go too far in either direction. When, as now, we place excessive importance on individualism, and neglect the common good, we run the danger of forgetting what it means to be an American, a part of a polity. We forget who “we” are when we focus too narrowly on the “me.”

And “we” are constituted by our commitment to our Constitution. When our citizens are ignorant of American history, American values and our constitutional commitments, we lose our identity.

His actual remarks were far, far more eloquent than my rendition of them. Listening to him, I could only think how much the current Court lost when he stepped down.

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S. Dakota, Kentucky Legislatures Contend for “World’s Worst” Title

As several readers have reminded me, Indiana’s legislature–while admittedly embarrassing–has lots of competition for the title of “worst.” South Dakota lawmakers recently passed not one, not two, but three (inconsistent) measures to forbid abortions. One of those bills, which defines a fertilized egg as a “person,”  would also outlaw most birth control. (Keep those women barefoot and pregnant!)

Lest you assume that South Dakota has wrapped up the competition, Kentucky’s legislature has also proved that it’s a contender!

Although residents of Kentucky, like the rest of us, already have religious liberty under the First Amendment, conservatives in the state legislature decided to craft a new “religious liberty” law. It will allow Kentuckians with “sincerely held” religious beliefs to disregard state laws and regulations. In Kentucky now, if a law conflicts with the tenets of your faith as you interpret them, your conscience will trump your obligation to follow the law.

Suspect that one of your employees been sleeping around? Fire the tramp. A gay couple wants to rent in one of your apartment buildings? Refuse the sinners. Disapprove of birth control? Eliminate coverage under your company’s health insurance.

Kentucky’s Governor had the good sense to veto the bill, but the legislature overruled his veto. So at least until litigation settles the matter, anyone fond of  his or her civil rights might want to avoid Kentucky.

It’s hard to believe, but South Dakota and Kentucky actually make Indiana lawmakers look rational by comparison.

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Logic–Fox News Style

My husband was doing the “guy thing,” clicking the remote through a series of channels. He paused for a roundtable discussion on Fox; we were both somewhat startled because the participants were praising a report aired by NPR. Evidently, NPR had been criticized by Media Matters, and they were engaging in the time-honored tactic of “the enemy of my enemy is suddenly my friend.” Those participating in the roundtable used the attack to launch into a group chorus to the effect that “the liberal media” are all hopelessly biased.

With the exception of a kind word for NPR, it was a pretty predictable Fox rant. But then….(drumroll, please)…the discussion turned to CNN and its purported  liberal bias. One of the talking heads dismissed the insistence of a CNN executive to the effect that the network was neither Right nor Left– that its mission is simply to report the news. Her “evidence” that CNN was a “liberal” outlet was that they often reported the same news as MSNBC.

It evidently never occurred to her that two descriptions of newsworthy objective reality might turn out to be similar. Or that real journalists report on events even when those events tend to cast doubt on their preferred view of reality.

Or that sometimes, reality itself has a “liberal bias.”

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Born That Way

There is a relatively recent internet site called “Upworthy,” that culls videos from around the web that the site’s managers deem worthy of a wider audience (they’r “UpWorthy”) and promotes them. This morning, I saw one of them–a clip from comedian Wanda Sykes in which she explains why it is more difficult to be gay than to be black (she’s both). After all, she didn’t have to “come out” as black. I encourage you to click through and watch this 2 minute performance; Sykes is a gifted comic, and it is pretty funny.

The bit reminded me of an epiphany of sorts. When I was Director of the Indiana ACLU, I hosted a small fundraising dinner at my home for our Project for Equal Rights. We used that euphemism for Gay Rights, because it was the mid-1990s, and this is Indiana. At any rate, the guest of honor was the then-head of the ACLU’s national gay rights project, Bill Rubenstein. Something he said during that dinner  has remained with me ever since.

Gay kids have no role models.

Virtually every minority group teaches its children how to “be” what they are; Jewish parents model “Jewishness,” Hispanic parents are a bridge to the cultures from which they came, etc. But gay children are born to heterosexual parents–and most often, to parents who have no experience with gays or gay life. Each child who grows to realize that he or she is “different” has to figure out how to understand that difference, and how to live a rewarding and authentic life–without the help of a parental role model, and often despite parental rejection of that difference.

That’s a heavy burden. The least we can do as a society is not add to it.

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