The Real America and the Bill of Rights

[nancylebov]

Mostly from a comment here:

I wish I could believe that our ideals have been betrayed at Abu Graib and Guantanimo, but the US generally doesn't have a problem with coerced confessions and prisoner abuse: as far as I can tell, most Americans believe that if you're accused, you're guilty and if you're guilty, you deserve whatever is done to you. This was all in place before 9/11.

They don't mind police lying to accused people to get confessions. It's been a lot of work to get videotaping of even a few interrogations. Plea bargaining is standard practice, even though it's obviously pressure to get innocent people to plead guilty.

Convictions have been overturned by DNA evidence, but it's taken a lot of pressure from outside the government. And it can be a hard haul just to get the DNA tested-- if it hasn't been destroyed.

Defense attorneys are on the automatic hate list for a lot of people.

There is generally no concern for prisoner rights, or as it's commonly said "If you can't do the time, don't do the crime."

A lot of the best fighters against these abuses say that the real America is better than Abu Graib. That level of extreme abuse isn't typical, but opposition to that sort of thing wasn't principled and wasn't pervasive enough to even begin to keep it from happening.

I'm talking about the sort of gut-level opposition which meant that, as bad as Abu Graib was, mutilation wasn't a standard part of torture, even though the whole chain of command was free to do what it pleased. That's what a real taboo looks like. What we need is to get from that much (and it's something-- not all cultures, including ours in the past, have that taboo) to an equal revulsion against trying to get false confessions or taking out hatred on helpless people.

I'm not saying that our worst is the real America, but I don't think our best is, either. I'm taking the real America (to the extent that the concept is meaningful) to be our usual.

Maybe saying we aren't really like that is the best strategy, maybe the most likely way of making a change is by assuming it's already the underlying reality, but it just isn't true, and if it was ever true, please tell me. America is enough better than a lot of places that there's a steady flow of illegal immigrants, but that's not the same thing as taking the Bill of Rights seriously.

If we're to have an end to torture, it's going to be by the general public acquiring new and better visceral reactions.

Comments

[supergee.livejournal.com]

I don't agree that plea bargaining is pressure to get innocent people to plead guilty. One could say just as easily that it's a way criminals get out of full punishment for their crimes because the legal system is too crowded to give everyone trials.

To decide which of those is correct, one would have to know the correct punishment for a particular crime and see whether the bargained punishment was more or less, and I don't see any way of doing that.

[nancylebov.livejournal.com]

Plea bargaining is both likely to lead to lower punishments for guilty people and unjustified punishment for innocent people. My point is that the general public doesn't seem to see the latter as a problem.

[madfilkentist]

The visceral level is the hardest one to change in people, at least if you can't get to them before they're twelve years old. It's the hardest to change even in oneself. It's possible to move people viscerally for short periods of time, but that usually involves suppressing their thinking, so the results tend to be for the worse. Inciting mobs is the obvious example.

Spreading better ideas may not reach people at the visceral level, so it can take a long time for new ideas to make a difference. But it's the only thing that has a chance.

[nancylebov.livejournal.com]

I hope art can make a difference on the visceral level, but changing the visceral level is a large topic for another post.

[doomspark.livejournal.com]

While plea-bargains do generally end up giving a guilty person a lighter sentence than they would have gotten if the case went to trial, the guilty person does end up paying a penalty for their actions. Jury trials are a crap-shoot at best.

[ckd]

Whether or not the real America is better than Abu Ghraib, it should be. Wherever the ideals fail, it's still a failure whether it's in a Federal supermax facility, a county jail, or a military prison.

One of the things that gave me hope about Obama was his work on getting an Illinois law to tape confessions through by bringing all sides together (police, civil libertarians, etc) on it.

[atomicat.livejournal.com]

Abu Graib and Guantanamo are not anomalies, the hardcore federal prisons in the U.S. are rife with abuse. Yes, it's a prison and punishment oriented country, society, with more people in jail for simple possession than all the prisoners for any offense in every country in Europe! That is an absolutely staggering figure to consider.

Prisons run for profit. What a great incentive to reduce the prison population.

[subnumine.livejournal.com]

Yes, if we actually practiced the policy of letting ten guilty men go free rather than convicting an innocent one, even in the Appalachian hills where the squaddies involved in Abu Ghraib come from, it probably wouldn't have happened. (Under wartime conditions, with the argument that they were defending Americans in a foreign land, the temptation would still have existed.)

But even without that, there's a space between plea bargaining a man into jail for something he didn't do and Abu Ghraib; there's even a space between defending a bad plea bargain on the grounds that the punk must have done something and the present bleeding-heart conservatism, which I have discussed at length elsewhere (http://subnumine.livejournal.com/tag/bleeding-heart+conservatism). In that space lie the third degree, with its accompanying lights in the eyes and rubber hoses, which we don't (or didn't until recently) do as much as we used to.

A simple revulsion to adopting the methods of the KGB would have been sufficient; but the Party of Torture has been envying the KGB for some years now. So we are here.

[nancylebov.livejournal.com]

Agreed that the barriers could have been in other places, and mere revulsion at being like the KGB would have done a lot of good. Still, it would be even better if people understood in a little detail why you don't want to be like the KGB.

[sterlingspider.livejournal.com]

One of the biggest problems with incarceration in the US is that it hasn't decided whether it's a punishment system or a rehabilitation system.

That's not to say it's not brutally punishing anyway, but if it were codefied that one or the other was the aim of incarceration then at least there would be a potential for time served to have a goal, and in deciding that, we have a much better chance at least of deciding limits instead of the half-assed schizophrenic implementation of confused policy that is the modern American prison system.

[whswhs.livejournal.com]

I basically agree with that, though I think there are more than two goals at issue. Conservative intellectuals think of prison in terms of deterrence, or making people hesitate to commit crimes for fear of being punished. Liberal intellectuals think of prison in terms of rehabilitation, or a place where you go to be reformed (the source of such labels as "reformatory" and "penitentiary"). But the general public believes in neither; they believe in retribution, or the theory that if you do something against society, society ought to do something back to hurt you, so that you pay the price of your crime.

Beyond that, there are other motives for criminal punishment, including pacification (the state had better do something to them or people will take the law into their own hands), incapacitation (if you keep them off the streets they won't be hurting innocent people), and restitution (make them do something to compensate their victims). With all those different goals all tangled up it's no wonder that the penal system is a mess.

And that's not to mention the malign influence of the correctional workers' union, perhaps the single most evil influence on at least the politics of California, where I live.

[whswhs.livejournal.com]

One thing that has bothered me about American attitudes toward prisons is the increasingly casual acceptance of sexual assault. I've seen bail bond commercials that show an arrested man not getting bailed out, and finding himself sharing his cell with a big effeminate guy (which is itself a misleading stereotype, as apparently the usual prison rapist is not effeminate and does not consider himself homosexual, but is instead an opportunistic predator); and I remember a few years ago having a fairly high California official express the hope that some arrested businessman would do time in a prison where he would be subject to rape. So whatever the facts of prison sexual violence, the general public believes in it and rather enjoys the thought that prisoners will be exposed to it. But if a court actually sentenced someone to be imprisoned and raped, it would be thrown out as cruel and unusual punishment. So a lot of the American public favor prison sentences that, in their beliefs, will result in cruel and unusual punishment.

It makes me want to say that imprisonment, as such, is cruel and unusual punishment, and that unless prisons can be made sufficiently uncrowded and well-guarded so that prison rape is not a commonplace consequence of going there, all prisoners must forthwith be released.

[captain-button.livejournal.com]

One thing that occurs to me is that if we are supposed to be punishing people in prison, why are we letting some of them have the fun* of raping people?

An argument against prison rape to make to the "prison is supposed to be bad" crowd.

* Obviously they think it is fun, or they wouldn't be doing it.

[mindstalk.livejournal.com]

Indeed. Letting the most violent bully and rape the less violent hardly seems like a good incentive plan.

As for viscerality -- earlier today I encountered the novel idea of having "interrogation" demos on prime time TV. Show people what waterboarding is like. (Other techniques might be to slow to show, and even waterboarding won't show what it feels like, though those conservatives who self-administered and concluded it was torture, period, would be good to interview.)

For that matter, I don't know what real prisons look like, or how accurate TV depictions are.

[nancylebov.livejournal.com]

My notion is a tv show set in a torture rehab unit.

And a movie or two where the viewpoint characters use torture and get plausible bad consequences.

And maybe something about torturers getting handed over to their victims.

Or possibly some live coverage of Truth and Reconciliation commissions.