Forget not fairness

Scurrilous allegations of a scarlet nature were leveraged in the 11th hour against Supreme Court nominee Brett Kavanaugh. They've since been relentlessly foghorned by an odiferous mongrel behemoth comprising underhanded politicos, terminally biased media, anonymous Deep State bureaucratic bottom-dwellers, and "creepy porn lawyer" Michael Avenatti, whose deviant predilections would earn opprobrium from even Harvey Weinstein.

It is not at all a heartfelt crusade on behalf of the wronged and ignored, as patrons would have us all believe. Pay no heed to that profoundly insincere posture. This is a cold and cruel blood quest, launched by an entrenched Deep State that doesn't give a damn about anything but maintaining authority. It certainly does not care about justice or democracy.

We all want systemic fairness. But compassion for victims, appropriately punishing criminals, and safeguarding the interests of accused persons are hardly adversarial ambitions. Each is a component of the criminal justice system. All must be equally honored for the whole to enjoy integrity and meaningful purpose.

The below essay from my last book, Ideas Afoot, has new relevance.


Anger and principle coexistent

Though it occurred decades ago, it infuriates me, still.

Someone with whom I was close had suffered sexual harassment at her workplace. The perpetrator was a co-owner of a small business, and a social and political climber. 

His family was relatively affluent. Various of its members had long been active in local Democrat political and church-related activities. 

They were thought redoubtable pillars of the community. But these promoters of liberal, feminist messages enabled through shielding a family member who perpetrated horrific and unnatural assaults on vulnerable, lower class female employees. 

My friend begged me to not confront the assaulter, insisting that formal remedies alone be pursued. I respected her wish. Sexual harassers, on the other hand,  do not respect victims' autonomy. 

I well remember her personal torment, sessions with assault survivors' counselors, and the obscurant court settlement. 

Through his legal team, the predatory perpetrator demanded a confidentiality agreement. His disgusting crimes would forever be concealed.

No newspaper carried an account. Nor do exhaustive trial records exist. Of course, that doesn't mean it didn't happen. I know that it did, just as surely as I know that computer keys lay before me as I recall this wickedness.

But I understand my personal knowledge of it and assertion that it certainly occurred are not conclusive for general observers. No man should suffer punishment until guilt has been established beyond a reasonable doubt. 

A man's liberty, reputation, and ability to earn should not fall owing to unsubstantiated allegations. Detesting criminality does not necessitate uncritical acceptance of each allegation voiced. 

The accused's rights are not obviated by the egregiousness of an alleged offense, nor by the number of accusers lodging complaints. 

I once sat for jury selection. The defense attorney put this question to prospective members: Who among them would say of a pre-trial defendant: 'I don't know whether he's guilty or innocent. I have to consider the evidence, first?'

Several raised their hands.

You are wrong, the attorney said. Every person is to be presumed fully innocent until it is established otherwise.

All who allege victimization deserve to be heard, to have their stories investigated. But they do not warrant immediate and unquestioning credence. A claim might seem credible. It might be in accord with established incidents. But plausibility is not actuality.

An argument some proffer is that the 'presumption of innocence' standard derived from the Constitution's 14th Amendment guarantee of equality under the law is applicable exclusively in courtrooms and need not be observed beyond them. 

I would assert that standard's spirit should inform casual social opinions, as well. Those straining against it are essentially declaring preference for a less rigorous rule that indulges disinclination toward fairness.

It is better that ten guilty men escape than that one innocent man suffer. 

Many historians attribute that phrase to Blackstone. But the principle that innocents shouldn't suffer that a greater good be advanced was previously enunciated in Genesis 18: 23-32:

Abraham drew near and said: 'Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it?...What if ten are found there?' He [the Lord] said: 'I will not destroy it for the ten's sake.'

The fate of Sodom was their subject of discussion. The Bible records that Sodom was ultimately destroyed, though only after God had rescued most of Lot's family.

Clause 39 of the 1215 edition of the Magna Carta states: 

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

The Founding Fathers included that wisdom in the 14th Amendment: 

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

And the standard was later advocated in the 1948 UN Universal Declaration of Human Rights:

Article 11: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

The sentiment that the presumption of innocence standard be got rid of, that supposed progress be enabled, is not new.  

To send men to the firing squad, judicial proof is unnecessary. These procedures are an archaic bourgeois detail. This is a revolution! And a revolutionary must become a cold killing machine motivated by pure hate. 

- Che Guevara, as quoted in The Cuban Revolution: Years of Promise (2005), by Teo A. Babun and Victor Andres Triay (Source: En.Wikiquote.org)

The revulsion one properly feels at the concept of criminality inspires laudable instincts to exact retribution and extend comfort to victims. And citizens are right to expect a civilized society to stand against harms.

But true righteousness provides accommodation for both anger at those whose guilt has been established and due respect for those free from such bench conclusion.