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What Kavanaugh should learn about criminal justice from yesterday’s ordeal

What you’ll read today

  • Spotlight: What Kavanaugh should learn about criminal justice from yesterday’s ordeal

  • House of cards

  • The Appeal Podcast Episode 16: Why police accountability is as elusive as ever

  • Museum of Broken Windows expresses the pain inflicted by policing

  • Proposed bills would impose oversight on NYPD

  • Mistrial in Texas police shooting of fleeing unarmed Black man

In the Spotlight

What Kavanaugh should learn about criminal justice from yesterday’s ordeal

Many things, most of them negative, can and will be said about the hearing yesterday at which professor Christine Blasey Ford accused Judge Brett Kavanaugh of sexual assault: It was “8 hours of fighting, and everybody lost”; there were “partisan punches”; it prompted “tears” and “jeers”; it was “a grotesque display of patriarchal resentment.” Regardless of the truth of the allegations, and regardless of the outcome, the hearing was an opportunity for Judge Kavanaugh and others on the right to reconsider some long-held positions about the way we mete out criminal justice in this country.

“Maybe it’ll make him a better judge because he knows what it feels like to be accused of something, maybe it’ll give him insight,” GOP strategist Susan Del Percio said on MSNBC’s “Morning Joe.” After watching the hearing, she concluded, it seems like that won’t happen. “He will just be angry and resentful.”

Kavanaugh’s judicial record shows that his “views on criminal justice are defined by a deference to law enforcement and a broad view of executive power that will enable more stops and searches, more arrests, more prosecutions, and an overly punitive justice system,” writes Kyle Barry for The Appeal. And during yesterday’s hearing, Kavanaugh called the allegations a “coordinated and well-funded effort to destroy my good name and destroy my family.” But in a quieter moment of reflection, if he is paying attention, he might learn the following:

Accusations can ruin lives. Earlier this week, South Carolina Senator Lindsey Graham told “Fox News Sunday” host Chris Wallace, “What am I supposed to do? Go ahead and ruin this guy’s life based on an accusation?” During his time questioning Kavanaugh, Texas Senator John Cornyn proclaimed, “You’re not guilty if someone makes an allegation against you in this country. We’re not a police state. We don’t give the government that kind of power.” Later during Cornyn’s questioning, Kavanaugh lamented, “I’m never going to get my reputation back. My life is totally and permanently altered.” Cornyn told him not to give up. 

Kavanaugh seems to believe that he is the victim of a pointed conspiracy and might not extend empathy toward those unlucky people churned through the criminal justice system every day, many of whose lives are upended by mere accusations. This view is not uncommon, even among judges. A recent episode of “Serial” quoted a judge saying, “[T]o someone with common sense, even one day in jail is devastating, life changing. To someone who’s got no common sense, maybe they do three years, five years. Means nothing.” The host, Sarah Koenig, said she understood what the judge was trying to say. “Punishment is relative. What it takes to teach you a lesson depends on what you’re used to,” she said. “But there was a more disturbing implication as well, [that] we are not like them. The ones we arrest and punish, the ones with the stink, they’re slightly different species, with senses dulled and toughened.” But when discussing a low-income woman with a criminal record who had been arrested on a charge that was ultimately dropped down to disorderly conduct, the case was no small matter. The woman “didn’t feel the stress and outrage and shame of this case less than I would have,” Koenig concludes. “I think she felt it more.” 

Speed matters. Throughout the hearing, Kavanaugh howled about the wait he had to endure before he had a hearing. “The day after the allegation appeared, I told this committee that I wanted a hearing as soon as possible to clear my name,” he said in his opening statement. “I demanded a hearing for the very next day. Unfortunately, it took the committee 10 days to get to this hearing. In those 10 long days, as was predictable, and as I predicted, my family and my name have been totally and permanently destroyed by vicious and false additional accusations.” The Daily Appeal’s curators, both former public defenders, could not help but think about the delays their clients had to endure before they were given the opportunity to tell their side of the story, before they could confront their accusers, before they could try to clear their names. In that time, they were often unable to work, separated from their children, or held in jail. The wait could go on for years, and most of the time, our clients never got their day in court. In the future, when ruling on an appeal that has taken years to reach his desk––years during which a person waited in prison––Kavanaugh could remember what it felt like when he “demanded” a hearing for the next day and had to wait nine more days.

Punishments never really end. In his opening statement, Kavanaugh listed the lasting consequences these accusations might have on his life, even though no criminal charges have been filed. “I love teaching law, but thanks to what some of you on this side of the committee have unleashed, I may never be able to teach again,” he said. “I love coaching [my daughters’ teams] more than anything ever done in my whole life, but thanks to what some of you on this side of the committee have unleashed, I may never be able to coach again.” Kavanaugh was noting, rightly, that our system often punishes people permanently. Collateral consequences ensure that people, once tainted by the criminal justice system, are unable to return to their communities as full citizens: Some are unable to vote; many struggle to find any job, not just a preferred job; children are taken away; many are deported; securing housing can be a nightmare; and some are turned away even from shelters. Kavanaugh could remember this urgent fear of perpetual punishment in his future rulings.

You are not the worst thing you’ve ever done. “Listen to the people I know, listen to the people who have known me my whole life,” Kavanaugh pleaded. “Listen to the people I’ve grown up with, and worked with and played with and coached with and dated and taught and gone to games with and had beers with.” The desperation in Kavanaugh’s voice as he asked to be judged on the basis of his whole life might sound familiar to those who have been accused of wrongdoing, even those who are guilty. Between 70 million and 100 million Americans has some type of criminal or arrest record, and none of them wants to be seen only as the worst thing they have ever done. Regardless of the truth of the allegations against the 1 in 3 Americans who have a record, and regardless of the truth in Kavanaugh’s case, everyone deserves to be seen as a whole human being. Kavanaugh should keep this in mind, whatever his future holds.

Stories From The Appeal

“Cold case” playing cards distributed in the Delaware Department of Corrections. [Video still via 47 ABC/Illustration by Anagraph]

House of Cards. “Cold case” playing cards were just introduced at Delaware prisons in hopes of producing tips on unsolved homicides—but critics warn that informants cultivated behind bars can be dangerously unreliable. [Lauren Gill]

The Appeal Podcast Episode 16: Why Police Accountability Is As Elusive As Ever. This week’s guest, Appeal reporter George Joseph, has been doing deep dives into police discipline in cities across America. The findings? A system that still routinely protects its worst offenders. [Adam H. Johnson]

Stories From Around the Country

Museum of Broken Windows expresses the pain inflicted by policing: This week, the New York Civil Liberties Union put up a “pop-up experience” in Greenwich Village: the Museum of Broken Windows. It features art showcasing “the ineffectiveness of Broken Windows policing, which criminalizes our most vulnerable communities.” Russell Craig created “Self Portrait” by painting his face onto a canvas made out of “paperwork saved from over seven years he spent making his way through the criminal justice system” on drug charges. Another artist, Tracy Hetzel, contributed portraits of grieving family members holding photographs of their relatives who were killed by NYPD. Ann Lewis’s “…and counting” is 1,000 toe tags hanging from the ceiling with the names of those killed by police in 2016. [Ashoka Jegroo / Gothamist]

Proposed bills would impose oversight on NYPD: Two NYPD oversight bills were introduced in the New York City Council this week. One, sponsored by Jumaane Williams, “would require the NYPD to turn over monthly data on the number of officers wearing body cameras by precinct, the percentage of times video was recorded by cops, and the amount of use of force incidents of which video exists,” reports the New York Daily News. “The bill would also force the NYPD to provide the percentage of encounters which end up in Internal Affairs Bureau investigation” and to provide other information, including explanations for failures to record. Council Member Rory Lancman’s bill would stop the NYPD from turning over information from its controversial gang database to ICE. “You can’t talk about sharing information in the gang database without confronting the unreliability of the database itself,” Lancman said. [Graham Rayman / New York Daily News]

Mistrial in Texas police shooting of fleeing unarmed Black man: A Dallas County jury deadlocked, and a judge declared a mistrial yesterday in the case of a police officer who shot an unarmed man twice in the back last November. Derick Wiley, who was fired from his job as a police officer in Mesquite, was charged with aggravated assault by a public servant. He shot Lyndo Jones after mistaking him for a burglar. Prosecutors have not said whether they will take the case to trial a second time. Wiley, who is also Black, was responding to a call about a suspicious person sitting in a parking lot when he ordered Jones out of his truck at gunpoint. Jones said he didn’t know Wiley was a cop. “While Jones was on the ground, Wiley put his knee in Jones’ back, holstered his gun and started to reach for his handcuffs,” reports the Dallas Morning News. When he put his hand at the base of Jones’s neck, “Jones yelled out, ‘What are you doing?’” Jones ran away, and Wiley shot him in the back. Wiley later claimed he thought Jones might be a burglar and that he feared for his life. [Tasha Tsiaperas / Dallas Morning News]

Thanks for reading. Have a good weekend.

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