Minding The Issues: Three Scandals and What We Should Remember About Them

By the time this reaches print, the scandals involving the Duke lacrosse team, Don Imus’s racist/sexist remarks, and the firing of U.S. attorneys may be out of mind, overshadowed by the tragic and senseless shootings at Virginia Tech. However, the scandals are worth keeping in mind for the deeper problems they exhibit.

The falsely accused Duke lacrosse players

As we all know, three Duke University students, members of the lacrosse team, were accused of rape and lesser crimes on the basis of flimsy evidence, which grew flimsier on investigation. They were railroaded by a prosecutor, Mike Nifong, who was far more interested in obtaining a conviction than in achieving justice; on the basis of his accusations, the greater part of the public (including me, I freely admit) were convinced that the three were guilty as accused.

Because of the nature of the accusations – involving inter-racial assault by jocks at an elite college – the case was spotlighted from the beginning, with the three being portrayed first as villains and then as possible victims. The notoriety drew the attention of the media including the New York Times, which reported not only on the accusations and information provided by the district attorney, but also on weaknesses of the evidence he presented.

The families stood by them and hired lawyers who conscientiously and tenaciously argued for their clients. The efforts of these lawyers, plus the inescapable publicity, forced legal authorities to examine the case thoroughly.

Finally, a year later, after laborious investigation in which the evidence was declared faulty to an almost ridiculous degree, the three were declared innocent by the state Attorney General.

This raises the question: How many other individuals have been accused on the basis of flimsy evidence and railroaded by a prosecutor far more interested in obtaining a conviction than in achieving justice?

How many languish in prison because they were nobodies and could not attract the attention of the media; because they lacked families or friends who could support them financially or otherwise; because they were defended, after a fashion, by lawyers who were overworked and under-inspired?

The Innocence Project reports at least eight cases over the past few years in which convicted prisoners were proved innocent through DNA tests and other evidence. These cases must be the tip of the iceberg, in view of the small volunteer staff that deal with an enormous caseload at the Innocence Project and the need for absolute proof of innocence – not just a demonstration that the prosecution didn’t make its case -- before the prisoners can be exonerated.

David Evans, one of the three accused lacrosse players, looked at such cases in the light of his own when he said, “Many people across this country, across this state, would not have the opportunity that we did, and this could simply have been brushed underneath the rug, and some innocent person could end up in jail for their entire life.”

Are we as a society to show no more respect for justice than prosecutor Nifong? Our government, on various levels, must improve procedures intended to protect the innocent. Whether this is done by the legislatures, by the judiciaries (there seems to be due-process implications) or by Bar Associations, it must be done. This is the lesson of the case of the Duke lacrosse players.

As for the players themselves, I cannot agree that they necessarily will be scarred for life; but if that is the claim they wish to make in whatever legal proceedings may ensue (including, I hope, criminal proceedings against prosecutor Nifong), then more power to them! I hope and expect that they will receive a great deal of well-deserved money by way of lawsuits against the prosecutor and/or the state, and I wouldn’t be surprised if a book deal or two is in the offing. Most important, they have acquired wisdom, as Mr. Evans’s statement attests.

Don Imus’s racist/sexist comments

Imus’s incredibly outrageous comments have been attacked as “hate speech” and as injurious to the Rutgers women’s basketball team they were directed against. He has defended himself by saying that blacks (most notoriously rappers) use the same sort of language among themselves, and anyway he was just joking.

I believe both the criticism and the defense are misdirected or false. To my mind, Imus’s comments are just as obnoxious and harmful as his worst critics allege, but for different reasons.

I think we all implicitly recognize that the old adage “Sticks and stones will break my bones, but names will never hurt me” does not apply to racist or sexist slurs. But why? Why is such language so harmful that it is not considered to be protected free speech?

To call it “hate speech” is misleading, for it doesn’t necessarily express hate. An example is the Old South, pre-Civil War or even pre-1960s. In those times, we are told, whites could have real affection for the black people they knew, despite the fact that they were firmly committed to keeping blacks under the thumb of whites in every way.

The kind of language we are talking about is more accurately called “domination speech.” For it serves to perpetuate the norms of white and male domination.

A social norm is a way of acting or thinking that is widely held within a certain group. By saying that is it widely held, I mean that within a certain group a preponderance of persons act in accordance with it and enforce it by expressing their approval. For example, it is a norm among certain groups in the U.S. that blacks are inferior in important respects and should occupy an inferior position.

In order to be maintained, a norm requires solidarity. Those who participate in the norm, by acting in accordance with it and expressing their approval, must let others know that they continue to do so.

For if an individual participating in a norm begins to feel isolated, without social support, he will fail to speak out; and failure to speak out has a domino effect. The silence of a few chips away at the assurance of others. Those who had previously felt self-assured in expressing the norm feel more and more hesitant to do so, and so the norm shrivels away.

In maintaining solidarity, signals are important. By signaling his agreement with the norm, a participant provides the social support that others are looking for, and so the norm is maintained.

Here is where racial and sexual slurs – such as the infamous “N-word” or the words that Imus used -- come into play. They function as signals of participation in the norms of white and/or male domination, and thus they help to maintain those norms.

Thus, Imus’s claim that he was joking is irrelevant. Any utterance of a slur, joking or not, functions as a signal and is thus as pernicious as if it were uttered with malicious intent.

It also makes no difference that blacks apply such terms to other blacks. To be sure, if the blacks in question adhered to the norm of white domination, their uttering slurs would be pernicious. But it is clear that they don’t adhere to that norm. So their use of racial slurs among themselves is harmless in this regard.

It DOES make a difference that males, whether black or white, make sexist slurs. For these serve as signals of the male-domination norm, in the way I have just outlined.

So when we talk of “hate speech” (or of “hate crimes”), the relevant point is not hate; nor is it offense to individuals. It is not something done to individuals that merits our condemnation of such speech. Rather, it is the harm done to society at large, especially to the whole group of blacks and the whole group of females. It is the harm done by helping to re-awaken and maintain the norms of white and male domination.

The firing of the eight U.S. attorneys.

Eight U.S. attorneys were fired midway through this presidential term, with evidence leading many observers, including Republican and Democratic Senators, to believe that the firings were highly politicized. In at least some cases, the rationale that the attorneys were poor performers in their job could not have been true. However, Attorney General Gonzales and others in the administration give two arguments in defense: 1) No laws were broken. 2) U.S. attorneys serve at the pleasure of the president (i.e., are political appointees) and therefore can be fired at any time. Indeed, presidents have sometimes made a clean sweep at the beginnings of their administrations by firing the whole list.

1) To say that the firings broke no laws doesn’t get to the heart of the criticism. After all, Hitler broke no laws in coming to power (though he broke plenty of laws after coming to power, in the process of twisting the laws to his own purposes). This is of course an extreme example, but it is relevant. Keep it in mind.

2) The office of U.S. attorney is partly political and partly professional. It is only to be expected that the political orientation of U.S. attorneys weighs heavily in the president’s decision to appoint them. But once appointed, they are expected to do their job according to professional standards, with freedom to do so.

Senator Arlen Specter summed it up well when he said the president has a right to replace attorneys for no reason, but not to replace them for a bad reason.

Some defend the firings by comparing them to Hillary Clinton’s firing of the White House travel office, more or less on personal whim. But the comparison is off base. The White House travel office has no effect on citizens’ lives, while U.S. attorneys have a great deal of power to punish citizens who run afoul of the agenda that they, or the administration, wish to pursue.

In short, the Bush administration is in effect using the power of government, through the office of U.S. attorney, to accomplish its own political purposes. This (like recent wiretap measures, some would say) constitutes one small step away from the rule of law and toward a police state -- hence the Hitler example. Even one small step is one step too many.





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Volume 3, Issue 9, Posted 10:10 PM, 04.20.07