John Oliver on wrongful convictions, and some thoughts on the worship of process

John Oliver doesn’t get everything right, but he hits far more often than his misses, especially when critiquing aspects of domestic policy within the United States. In this case, the team at Last Week Tonight has put together an excellent video on the issue of wrongful convictions in the U.S., and how deeply fucked up that whole process is.

There’s one thread in this video that I want to pull a little, and that’s this:

When one of the West Memphis Three tried to get a new trial based on new evidence, including DNA, an assistant AG appeared before the state supreme court to try and talk them out of considering it, citing the harm that could do.

Judge: “What harm is there to allowing him to present all evidence?”

Assistant AG: “Well the harm is in the finality of a criminal judgment that is not demonstrated to have any constitutional or procedural defect, and just to try it again- I mean you’re suggesting, it sounds to me, Justice (inaudible), as though every 15 or 17 years or so we we really ought to try cases again to reestablish guilt so the harm is in is to the criminal justice system’s interest in finality.”

And a similar point comes up a little later, about a different case:

But the thing is a quick ruling like that is not remotely unusual. Many times appeals judges will just sign the state prosecutor’s documents without even changing the heading. One study looked at post-conviction appeals in the largest county in Texas, and found judges adopted the prosecutor’s findings verbatim in 96 of their rulings, and if at this point it seems like our whole system is set up to preserve its process even at the cost of human life, well during one death row appeal before the Missouri supreme court for this man, Joe Amrine one assistant ag basically admitted as much:

Judge: “You’re suggesting if we don’t find there’s a constitutional violation, then even if we find that Mr. Amrine is actually innocent, he should be executed?

Assistant AG: “The US Supreme Court in Herrera- ”

Judge: “I’m asking if that’s what you are arguing this day-”

Assistant AG: “That’s – That’s correct, your honor.”

It’s popular on the left to compare the center and right-wing worship of capitalism to actual religion, both in the dedication of its believers, and in their refusal to acknowledge reality. That’s why, while there has been real social progress in recent decades (though we’ve got a long, long way to go), economic policy has been moving far to the right, with the help of both major parties. I think there’s another ideological commitment that getting close to being as destructive as worship of capitalism and profit, and that’s worship of “the process”.

This seems to be a largely Democratic belief system these days. The Republicans have more or less openly embraced fascism, and they have a clear set of goals – more power for them and their donors, no matter the cost to the United States or the world. Democrats, or at least the leadership and a majority of the party, seem to have little in the way of actual beliefs, beyond their belief in capitalism, and in the process. That’s why it seems like the GOP fights tooth and nail for what they want, testing every boundary and looking for every loophole, but the Democrats always seem to fall short on their “big policies” before they even start negotiating with the GOP.

The Democrats don’t test the boundaries in pursuit of their goals, because the boundaries are their goal. Most of the party doesn’t actually want change. They’re willing to accept change, so long as it is very small, very popular, doesn’t require much effort from them, and doesn’t threaten to meaningfully change anything at a systemic level. They’re willing to embrace change that doesn’t hurt the powerful, like Obama’s continuation of the war on terror, or Biden’s continuation of Trump’s border policies, but when it came time to “fight for healthcare”, a universal system was never seriously discussed, and a public option was taken off the table before negotiations really started. And when a candidate was winning the primary with his Medicare for All message, there was a coordinated effort to tilt the field to favor a far more right-wing candidate.

If we assume that they aren’t consciously working to prevent left-wing change (and I think that’s an unsafe assumption), then they seem to hold a devout belief that change can only be good if it happens “within the rules”, and they even avoid things that aren’t against the rules, or that just might be against the rules. One of the better examples of this is the “Day One Agenda” from The American Prospect. They pulled together a number of actions that are within the power of the Executive Branch, or that haven’t been ruled to not be within that power. The GOP has made it clear that there’s no real punishment for making unconstitutional executive orders, to the point where they kept re-wording their “Muslim ban” until it managed to get through the courts.

Biden, as has been pointed out many times, couldn’t even be bothered to do things – like forgiving federal student loan debt – that pretty much everybody agrees he has the power to do.

Protocols and processes can be good, in theory. It’s good to have rules restricting the use and accumulation of power – I want more of those! But adhering to protocol for its own sake, especially when the “other side” has openly changed it in ways that hurt people, isn’t much better than causing that harm in the first place. Our system and its rules are designed to prevent any changes that might disempower the ruling class, and it seems to be that spirit of the law that the Democratic Party is committed to following, no matter how many people are hurt as a result.

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  1. sonofrojblake says

    “even if we find that Mr. Amrine is actually innocent, he should be executed?”

    “That’s correct, your honor.”

    Sorry, but the rest of your post after this was wasted. I couldn’t get past this. I don’t know how to express my feelings about it. I can’t believe this my headline news worldwide.

  2. jenorafeuer says

    This is, of course, nothing new. See also Rick Perry, the execution of Cameron Todd Willingham in 2004, Perry’s active interference in the investigation, and the fact that some of Perry’s supporters actually seemed to think this was perfectly fine, with one saying “It takes balls to execute an innocent man.”

    Until that ‘tough guy’ worship gets dealt with, fixing a whole raft of problems is going to be more difficult.

  3. lorn says

    It isn’t unknown for convictions to be overthrown because of new evidence but it is rare. Appeals are seldom accepted base upon ‘wrongful conviction’. Almost all appeals are granted for procedural failure or irregularities. Once you are ‘convicted by a jury of your peers’ the case is settled and the justice system is loath to revisit that jury determination.

    This is justified by the standards of conviction, beyond a reasonable doubt, and all the other protections granted in our system.

    It also has to be noted that the adequacy of public defenders funding is a matter determined by ‘community standards’, the willingness of the community to tax itself to provide public defenders. There is no objective standard. Which is why PDs covering dozens of cases a week, having minutes to learn about a case and present a defense, possibly even showing up drunk or falling asleep in court are not considered deal breakers. The reason being that if the community wanted a more competent defense they would pay for people to get that. They don’t so, by default, it is taken a read that whatever happens is okay with the taxpayers and, by definition, an ‘adequate defense’.

    Which is why it almost always pays to hire your own lawyer instead of asking for a PD. Does this bias the system against the poor? Sure does. Does this financial divide worry the taxpaying public? Perhaps a bit but not so much that they are willing to tax themselves and spend money to improve the situation.

    It also needs to be noted that most of the PD budget goes to death penalty cases. So the defense on lesser cases is more than likely to be egregiously bad. Particularly if the defendant wants to go to trial instead of pleading to a lesser charge.

  4. says

    The justification you mention assumes – incorrectly – that the people working on behalf of the legal system are acting in good faith.

    And it’s been very thoroughly demonstrated that that’s often not the case.

  5. lorn says

    And exactly where did I mention “good faith”? I Seldom find “good faith” to be a relevant category. Not when dealing with the criminal justice system. Easier to assume the existence of unicorns.

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