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Kavanaugh debate, on the left and the right, shows inability to see outside the criminal justice system


What you’ll read today

  • Spotlight: Kavanaugh debate, on the left and the right, shows inability to see outside the criminal justice system

  • In one Pennsylvania county, rape victims rarely find justice

  • Activists brace for further retaliation in the wake of the national prison strike

  • Prosecutors in El Chapo case move to bar defense from quoting Trump on ‘flippers’

  • Criminal justice reform advocate announces candidacy for Queens DA

  • California judge and former prosecutor call on judges to ensure fairness in new bail system

  • Alabama teen faces capital murder charges over incident that took place when he was 14

In the Spotlight

Kavanaugh debate, on the left and the right, shows inability to see outside the criminal justice system

This week, as new allegations of sexual misconduct against Supreme Court nominee Brett Kavanaugh surfaced, many on the political right are taking positions that make them sound distinctly like public defenders. Louisiana Senator John Kennedy, a member of the Judiciary Committee, said, “this is no country for denying people due process.” Senator Susan Collins of Maine proposed what has been called “a courtroom-style examination of Ford and Kavanaugh by attorneys, in addition to questioning by committee members.” [Caprice Roberts / Washington Post] “What am I supposed to do? Go ahead and ruin this guy’s life based on an accusation?” South Carolina Senator Lindsey Graham asked in an interview with “Fox News Sunday” host Chris Wallace. “This accusation has to be looked at in terms of our legal system.” [William Cummings / USA Today]

But it doesn’t, at least not when it comes to criminal law. Even conservative jurist John Yoo noted in an op-ed, “Ford and Ramirez should not have to meet a criminal law standard—that is, to establish the truth of their charges beyond any reasonable doubt.” [John Yoo / Washington Post] Kavanaugh’s public hearings “are less like a trial and more like a high-stakes job interview,” with the purpose to determine fitness for the post, writes professor Caprice Roberts. Law professor Kate Shaw explains that the Senate is constitutionally obligated to provide “advice and consent,” an obligation that has always depended on context. Ronald Reagan’s nominee, Robert Bork, failed because his “skepticism about the Constitution’s protection of privacy and liberty convinced a majority of senators that he was simply too far right of the mainstream.” Another Reagan nominee, Douglas Ginsburg, withdrew after reports of marijuana use surfaced. Shaw notes that these allegations “weren’t tested with the rigor that would have attached to judicial proceedings [or] the sort of adversarial testing that would occur in a court of law.” [Kate Shaw / New York Times]

Protesters came out with force over the weekend, many promoting the hashtag #BelieveSurvivors. Some have lamented that Kavanaugh was never prosecuted in the first place. The conversation seemed to converge with the news that Bill Cosby was sentenced yesterday to three to 10 years in prison for sexually assaulting a woman. Some were outraged at the sentence, hoping for a longer term. Many pointed out, rightly, that there are plenty of people serving far longer terms for marijuana offenses.

One problem with these conversations is not a lack of understanding about the legal system, but rather a lack of imagination. Raised on “Law & Order” and its spinoffs, Americans tend to filter every conflict through the lens of the criminal justice system, and many do not look for a satisfactory outcome beyond locking up the bad guys. Even on the left, prison seems to be the dominant cry. But for those who work to change the criminal justice system, this attitude seems to buy into a system that has oppressed many and reinforced social hierarchies instead of equalizing.  

But a new conversation is emerging, one that looks beyond questions of who deserves how much time behind bars, and asks instead what these revelations of sexual abuse and misogyny mean about who occupies positions of power in our culture. As Michelle Goldberg puts it, the Kavanaugh scandal gives us an “X-ray view of the rotten foundations of elite male power.” In July, the New York Times published an op-ed by a liberal law professor in support of Kavanaugh’s nomination based on his sterling “judicial credentials.” In a shift away from that rhetoric, the same paper yesterday published an article describing how Kavanaugh and his second accuser, Deborah Ramirez, came to Yale from “worlds apart.” Ramirez was “the daughter of a telephone company lineman and a medical technician,” and had attended a Catholic school with a number of minority students, including Ramirez, whose father was Puerto Rican. She worked long hours in the dining halls and dorms to pay for tuition. Kavanaugh had come from privilege and attended an elite school in the Washington, D.C., suburbs. He “hung out with rowdy jocks” and joined a fraternity, Delta Kappa Epsilon, with a reputation for heavy drinking, a degrading pledge process, and misogyny. [Stephanie Saul, Robin Pogrebin, Mike McIntire, and Ben Protess / New York Times]

These considerations, about who occupies the most powerful positions in our country and what they bring to those positions, are crucial.

Stories From The Appeal

Activist Lacey Kohlmoos demonstrated in April outside the Montgomery County Courthouse in Norristown, Pennsylvania, where Bill Cosby was being retried for sexual assault. [Photo illustration by Anagraph. Photo by Mark Makela/Getty Images]

In One Pennsylvania County, Rape Victims Rarely Find Justice. Since 2015, police in Adams County have taken dozens of reports of rape, yet charges were filed in just two cases. [Joshua Vaughn]

Activists Brace for Further Retaliation in the Wake of the National Prison Strike. As media attention wanes, “this is the most dangerous period with any prisoner action,” one organizer said. [Bryce Covert]

Stories From Around the Country

Prosecutors in El Chapo case move to bar defense from quoting Trump on ‘flippers’: The case against Joaquín “El Chapo” Guzmán, the leader of the Sinaloa Cartel, rests, as many federal prosecutions do, on cooperating witnesses, the kind of people that President Trump has called flippers and dismissed as untrustworthy underlings who betray their bosses for their own gain. Trump famously told “Fox & Friends” after his attorney Michael Cohen pleaded guilty to crimes implicating the president that the use of flippers “almost ought to be illegal.” In a recent court filing, prosecutors on the El Chapo case asked the judge to bar the defense team from using comments from a certain “government official” regarding “flippers,” apparently afraid that they could undermine jurors’ trust in those witnesses. “These statements have no bearing on the facts at issue in this case,” they wrote. [Meagan Flynn / Washington Post]

Criminal justice reform advocate announces candidacy for Queens DA: New York City Council Member Rory Lancman of Queens, a strong critic of quality-of-life policing, announced today that he is running for Queens district attorney. As DA, he said he would stop prosecuting low-level offenses, launch a wrongful conviction unit, and would no longer seek cash bail. Thousands of people each year, he said, are accused of low-level offenses and “funneled into the criminal justice system, given criminal records that saddle them for the rest of their lives, and make it hard to go to school, get a job. That’s what’s called the ‘New Jim Crow.’ Tearing that down starts at the Queens DA office, by refusing to prosecute those offenses.” The incumbent, Richard Brown, is the longest-serving DA in New York City. He has not faced an opponent since 1991, when he took office, and has consistently resisted calls for reforms, prompting Lancman to liken his office to “the land that time forgot.” [Max Rivlin-Nadler / Gothamist]

California judge and former prosecutor call on judges to ensure fairness in new bail system: The recently signed California law that eliminated the state’s cash bail system “has left a void of uncertainty, the details of which have been left to judges to determine how a new system will work,” argue Ladoris Cordell and Miriam Krinsky in an op-ed published yesterday. “To avoid replacing one unjust system with another, the California judiciary” should ensure that the new system is “fair and equitable,” and that it “dramatically reduces the population in county jails.” Many fear the “unfettered judicial discretion” baked into the new law and undefined “risk levels” for pretrial detention could lead to higher rates of incarceration and exacerbate racial bias. The authors write that judges “must rigorously assess the evidence in every case and not allow presumptions of pretrial detention to turn into automatic detention.” They add that judges must also “mitigate the racial bias that’s inherent in the use of risk assessments. … A panel of experts and judges will develop the standards for these tools, which should include transparent data collection so that any resulting bias can be corrected.” [Ladoris H. Cordell and Miriam Aroni Krinsky / Sacramento Bee]

Alabama teen faces capital murder charges over incident that took place when he was 14: “Two Montgomery teenagers are charged with capital murder in connection with a May 2016 homicide in Prattville,” reports Alabama’s Montgomery Advertiser. “One of the teens was 14 at the time of the homicide, which makes him one of the youngest people in the state to be charged with capital murder.” Lil’ Roderick Williams and Devonte Raymon Hill have been indicted on capital murder charges by a grand jury, accused of shooting a 57-year-old. Prosecutors filed capital charges because they believe the shooting was part of a robbery. The decision to try Williams and Hill as adults has cleared an appellate court and the Alabama Supreme Court. [Marty Roney / Montgomery Advertiser]

Thanks for reading. We’ll see you tomorrow.

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