Coakley II

I've come under some pretty significant criticism from Radley Balko, who I linked to the other day when writing about Martha Coakley's history of involvement in the Amirault case.

(Aside: Doesn't Reason moderate their comments? Therein, I've been called a flaming cunt, a fascist, evil, and that's just in the first ten!)

I have a great deal of respect for Balko. His work on the Corey Maye case, in particular, was outstanding. Given his commitment to working on innocence issues, I know that he's not just blowing smoke here, unlike a lot of other people who are speaking out against Coakley's poor record as an advocate for justice. So I'm inclined to give what he's saying serious consideration.

Nevertheless, I think he's getting my point all wrong. I must admit that what I wrote on Friday was tossed off pretty hastily. I could have written what I wrote more clearly, more thoughtfully, and with a better explanation of my reasoning. When you write for a blog such as this one, where a lot of our posts don't get much attention, you fall into the trap of assuming that most of your readers are inclined charitably toward you and will give you the benefit of the doubt. That breeds laziness. Laziness which I would do well to steer clear of.

So let me be clear: I do not think Coakley should receive "a pass," as Balko characterized my opinion multiple times. Nor did I offer her political self-interest as a justification for her actions. I realize that because it came at the end of my explication, it could have seemed like one. Like I was saying "look, she did it for political reasons, so that's okay." That couldn't be further from the case, or further from my intention. Rather, I think it's important that we see these actions in a political context, because they illuminate our own responsibility for the actions of prosecutors and judges. I also think it's important that we see them in the context of systems, rather than just as the morally problematic choices of bad actors. As I wrote before:

What I find far more troubling is something mentioned later in the Balko article, which is that Coakley publicly opposed the creation of an innocence commission in Massachusetts. This, I find absolutely deplorable. Advocating for the state in any one case? That's the DA's job. But arguing that systems should not exist to investigate the actions of the state, to hold the criminal justice system accountable? That's a prime example of systems that disadvantage defendants. Innocence projects exist because it's extremely difficult for convicts to argue that they were wrongfully convicted. It costs of lot of money and often requires the use of experts. Experts are expensive. We're talking forensic experts, DNA testing, psychological experts in witness testimony, highly trained investigators.

A lot of the commenters seemed to think that I was giving Coakley "a pass" because I think it's more important that she win as a Democrat. But Balko's right, I didn't make that argument. I should have, though. The fact that she's a liberal was illuminating my comments because it seems to me that, all other things being equal, her election as a senator will do more good for the poor, disadvantaged people who find themselves in and around the criminal justice system.

Here's where I get overly cynical. And I'm not a cynical person. There are few things about which I'm jaded. But I have completely abandoned any expectation that politicians will act, vote, or legislate in ways that comport with my values when it comes to criminal justice issues. They almost uniformly don't, whether they're Republicans or Democrats. Frankly, sometimes Democrats are actually worse on criminal justice issues because they are constantly trying to protect themselves against allegations that they aren't sufficiently tough on crime. That This American Life piece I linked to was talking about how Gov. Schwarzenegger had paroled many more people than former Gov. Gray Davis, for precisely this reason.

I find that despicable.

But. Here's the part where I didn't do a good job of explaining myself. The lines I wrote that Balko, and a lot of commenters, seized on, are these:

So, what's the moral status of advocating that someone who is likely innocent remain in prison? It's a tough question.

Most readers seemed to interpret what I wrote as "What's the moral status of advocating that someone who you know to be innocent remain in prison?" But that's not what I wrote. I think the moral status of advocating that someone you know to be innocent remain in prison is not a tough question. It's morally reprehensible, unjust, worthy of scorn, discipline, reprimand, disbarment, removal from office.

But cognition is a funny thing. Can we really say that Martha Coakley knew that Amirault was innocent? We can't. We can't say something even less than that, which is that Coakley believed that Amirault was innocent. If she did, that's enough to make her a bad actor. Knowledge isn't required. My question was a deeper one: what's the moral status, absent firm cognition or belief, of advocating that someone who is in fact innocent remain in prison? There are lots of cases like this. Lots. Many people are wrongfully convicted where physical evidence is thin and witness testimony is far less problematic than in this case. I will not stand and say that any prosecutor who has ever advocated for the indictment, incarceration, sentencing, or denial of parole of every person who later turned out to be innocent is a moral bad actor. I doubt Balko would make that claim either.

Frankly, I'm not educated enough about the state of affairs in 1999 and what Coakley knew or didn't know, believed or didn't believe, to evaluate whether what she did meets the threshold for moral reprehensibility. And that's what I was trying to say, though I did so inartfully: the fact that she advocated for someone who is, in fact, likely innocent, is not in itself enough to disqualify her from serving as a senator. Nor would it be enough for a Republican candidate.

Balko and his commenters seem to think that voters should "send a message" to Coakley by not voting for her as protest for her actions in the Amirault case. If it were the case that that message might reach her or other politicians, I might actually be in favor of this tactic. But if Coakley loses, there are going to be a number of messages that Democrats and Republicans are going to take away from this race, and I don't think any of them are going to involve Gerald Amirault. Her loss will be blamed on a poor campaign, being part of the party in power, anger at government on the part of constituents, bad organizing, the danger of assuming you've got an election locked up, and many other things having nothing to do with Coakley, such as a sense that the Democrats are screwing up.

And that's where political expediency comes in. Do I think people should vote for Coakley? I don't have a dog in that fight. If I were a Massachusetts resident, I certainly wouldn't have voted for her in the primary. I was responding to a reader who was inclined to vote for her, but concerned about this particular aspect of her history. And I assume that if someone is inclined to vote for Coakley, it's because they identify as a Democrat/want health reform/want the success of the Democratic agenda in Washington/etc. Do I think her actions in the Amirault case, at face value, mean that someone who is otherwise ideologically or pragmatically inclined to vote for her, should refrain? No. Because, as I said, what she did is shockingly common.

People seemed to think that the "everyone's doing it" argument is morally bankrupt. I don't. I think, when it comes to politics, we simply have to judge people against their peers. As a less dire example, I think accepting money from interest groups that have a stake on issues you legislate is morally problematic. Lots of people agree. But it's the status quo; everyone does it. So if you refuse to vote for any candidate who accepts money from interest groups, you're going to find yourself not voting a lot, or at least not voting for any candidate who has a chance of winning. So instead of capriciously blaming individuals for participating in a broken system, whether it's criminal justice or campaign finance, we should seek to reform the systems to prevent injustice and undue influence from flowering.

Is this moral relativism? No. Moral relativism is deciding that everyone's right, or at least that we have to judge them by the norms of society rather than any independent moral standard. Instead, what I'm saying is that we have to do the best we can given the choices we're given. Here we're given a choice of Scott Brown or Martha Coakley. Is what she did dispositive as to how we would make that judgment against her competitor? I've seen no evidence to suggest that people who find themselves entangled in the criminal justice system would fare better with Scott Brown as a senator than with Martha Coakley. Brown would support and reinforce the systems that make it harder to be a defendant, that make it harder to be a poor person, a black person, an undocumented worker.

And this is why I maintain my state of being more troubled that Martha Coakley opposed the creation of an innocence commission. I can't find an answer on the internet: was such a commission ever created? Think about it: this would affect every single person wrongfully convicted in the state, not just one. Systems are far more important than individual actions. And given that politicians are responsible for the creation and implementation of systems, I think their systemic actions are far more important than their individual ones.