Courts of Politics or Courts of Justice?Maimon Schwarzschild
When the court systems become politicized, does it encourage politicized prosecutions? There’s no direct connection between a habit of judicial overrreaching when making public policy, and politicized criminal prosecutions. But realistically, if the courts are politicized in one way, they are more susecptible to being politicized in other ways as well.
Dubious criminal prosecutions are certainly in the news. Dorothy Rabinowitz, in the Wall Street Journal on Thursday, compares and contrasts the Duke “rape” prosecution with the Salem-witch-style child-care “sexual abuse” prosecutions in the 1980s and 90s. Rabinowitz was a lonely journalistic voice for many years against the injustice of many of these child abuse prosecutions, in which completely innocent child care workers were given long prison sentences on “evidence” manufactured by feminist psychologists and ideologues. The Duke Lacrosse players have had a hellish year as a result of DA Mike Nifong’s abusive prosecution, says Rabinowitz, abetted by the race-gender-class ideologues at Duke. But at least they haven’t served eighteen years in prison for an imaginary crime, as some of the “child abuse” defendants did. And Rabinowitz seems confident that the Duke prosecution won’t proceed much further. (DA Nifong’s belated withdrawal from the case yesterday may – but only may – suggest that Rabinowitz is right on that last point.)
Consider another recent, high profile prosecution, or rather group of prosecutions: the Enron cases. Malcolm Gladwell has a fascinating piece in the New Yorker (of all – exquisitely “blue” – places) on the Enron case. His main point is that Enron’s management, while conducting their business in a crazily risky way, publicly disclosed everything they were doing, apparently just as the law required. Should the executives have known that the deals they were making were criminal? Gladwell suggests not only that the Enron people may not have realised they were committing fraud, but that it wouldn’t necessarily have been clear even to a reasonable person – without benefit of hindsight – that the executives would be prosecuted if the deals failed to pan out, which of course they did spectacularly. Almost as an aside, Gladwell notes the chillingly vindictive way in which the Enron defendants were sentenced. The Enron case, of course, was intensely political: Enron was shorthand for “corporate corruption”, which the media and other partisans associated gleefully with the Bush administration. Gladwell’s article implies, without actually saying, that the Enron prosecutions may have been unjust, and certainly tainted with more than a touch of populist demagoguery.
You couldn’t prove any direct relationship between such abusive criminal prosecutions and the wholesale move by the courts over the past half century into public policy making. But in practice there may be a connection. When courts become a forum for political decisions, it’s almost bound to create a more political – a more partisan, and at least potentially a more demagogic – climate in the courts. Legal theorist Larry Solum calls this the “downward spiral of politicization“. We may be seeing this in the prosecution of politically inviting targets like Martha Stewart; perhaps of the Enron people too. The “child sex abuse” convictions – a wrong that Dorothy Rabinowitz persistently and courageously exposed – were surely a scary abuse of justice. The Duke prosecution likewise.