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One Criminal-Defense Attorney’s Lament

We need to resist the urge to address the horror du jour with untenable solutions, even when mobs adore them and denigrate anyone who questions them. At the moment, “affirmative consent” is a glaring example. When “no means no” was the test, it was a clear, workable, constitutional line. Sure, there were exceptions such as the incapacitated person, but we could easily accommodate the anomalies. Affirmative consent doesn’t work, as its parameters can’t be defined and there are post-hoc excuses built in that undermine its efficacy (“I said yes, but I felt pressured, coerced, so it really wasn’t a yes, but a no.”)

To make a viable system that works the best it can, even recognizing that it will fail on occasion, we need to stop using flawed, aspirational assumptions as its basis. We need to rely instead on cold, hard reality—and a recognition that we cannot come up with a way to cure every ill people manage to cause. We will still fail at times, but we can do better if we get real about it.

Friedersdorf: As we conclude, I wonder if the news is giving us case for a bit more optimism: In Florida, the state that long disenfranchised more adults than any other for bygone felony convictions, a supermajority of voters passed a constitutional amendment that will restore voting rights to more than one million people. Does that result, or anything else about Election 2018, change your outlook at all?

Greenfield: It’s interesting that you’ve raised Florida’s Amendment 4 as an example, as it re-enfranchises about 1.4 million ex-cons who’ve paid their debt to society and deserve to be restored to their rights as citizens––certainly a good thing even if other rights than voting remain denied them.

And yet, Amendment 4 omitted an entire class of defendants convicted of sex offenses. So does it prove that we’re moving toward reform or that we’re just changing the head on the corpse? If there was a principled approach to reform, then it would apply to all rather than selectively. Do the voters understand and appreciate the underlying principles at stake, or is this just pushing their happy button of the moment?

I won’t complain that good things are happening, even if for bad reasons, but if the public had a deeper appreciation of the issues, the principles, the rationale behind the solutions, they wouldn’t leave out unpopular swathes of people. Even worse, this lack of principled understanding is producing a balancing act of reform for the favored and increased harshness for the disfavored. It’s the disfavored who most need of reform, much as it is unpleasant speech most in need of protection.

In response to some questions, I’ve mentioned some examples, such as the Central Park Five. Consider another that I neglected to mention, the Duke Lacrosse team, which adds one additional dimension to the problems we’re facing. Even after it was absolutely clear that there was no rape, that the prosecutor, Mike Nifong, was dirty, and that the white male athletes he wrongly charged committed no crime, many members of the Group of 88 Duke professors who placed an ad that appeared to presume the guilt of the players stood by that statement—not because the alleged rape happened, but because the allegations had focused attention on what they alleged was a campus atmosphere of sexism, racism, and sexual violence.

Passion has overcome facts and logic, and reality is no longer a constraint in condemnation. This may be close enough for an academic panel at a philosophy symposium, but real people’s lives are being affected and even destroyed in the process of elevating narrative above reality. They don’t seem bothered by the collateral damage. I value every life, and reject the notion that anyone should be sacrificed for some cause.

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