Bill Cosby And The Incoherence Of American Liberalism

Bill Cosby after being released from prison this week. (Photo by Michael Abbott/Getty Images)

Courts don't “exonerate” criminal defendants or declare them "innocent" — they adjudicate whether the legal standards of guilt can be established in accordance with the due process protections set forth by the Constitution. You don’t need to have gone to law school to understand this basic concept. And yet, there’s an endless stream of people with high-profile media positions who apparently have no compunction about revealing their inability to grasp an elemental aspect of how the US government works.

When social media commentators, headline writers, and TV reporters scornfully dismiss the overturning of Bill Cosby’s sexual assault convictions as having hinged on a mere “technicality,” they are demonstrating one or more of the following: they did not bother to read the Pennsylvania Supreme Court ruling, they have an extremely poor understanding of the foundational precepts of American law, or they are so addled by their uncontrollable emotional fervor they can barely formulate a coherent thought. Because the Court was emphatic: it ruled that the prosecution of Cosby was “an affront to fundamental fairness” and “antithetical to... the integrity and functionality of the criminal justice system.” That’s hardly consistent with what most people think of when they hear the term “technicality,” as though Cosby lucked out and got off on some minor oversight or procedural snafu. Wrong. According to the Court, the entire basis for his prosecution was a wholly untenable violation of his civil liberties.

As one of Cosby’s former defense attorneys, Tom Mesereau, said: 

It's not a technicality at all. The first DA investigated the case, talked to witnesses, looked at the evidence, did a substantive review of what this case was about, and made a substantive — not a procedural decision — a substantive decision based on the evidence that this case should not be prosecuted. This is not a technicality, it’s the Pennsylvania Supreme Court enforcing an agreement by a District Attorney who said this case didn’t belong in a criminal courtroom.

Whatever moral infractions Bill Cosby may or may not have committed throughout the course of his life, there were three discrete criminal convictions achieved against him by the Commonwealth of Pennsylvania. Not only have those convictions now been negated, the Court also barred any further retrial given the gravity of the prosecution’s violative conduct. Cosby’s trial was never a referendum on his moral character; it was a referendum on whether prosecutors could establish guilt beyond a reasonable doubt within a framework prescribed by the Constitution. They failed in this task, as judged by the highest Court in Pennsylvania, hence Cosby’s immediate discharge from prison.

There’s a bigger issue at stake that goes beyond Cosby, who understandably generates an abnormal level of fascination and drama due to his celebrity status. “America’s Dad” or not, would anyone seriously argue that a man who turns 84 this month, and is legally blind, poses an acute physical danger to society? (Do people even know that Cosby was offered parole but effectively turned it down, so as to maintain his innocence?) Because if you contend that he deserves imprisonment for reasons that have nothing to do with protecting society from danger, then you are arguing for the use of prison as an instrument of retribution, social censure, or some other purpose beyond the mere prevention of physical harm. Plenty of people make that argument about the utility of prison — notably “law-and-order” conservatives. But it’s so clearly inconsistent with a social movement that generally prides itself on a withering critique of the punitive excesses of the US criminal justice system, particularly the problem of over-incarceration. Yet, left-liberals who’ve spent the past year blasting out that withering critique at full volume also tend to be the ones screaming most inconsolably that Cosby has just been extricated from an incarceration deemed to have been the result of egregious prosecutorial conduct. 

Consider a representative BuzzFeed article published after the Court ruling — one of those “articles” that’s really just a collection of screeching tweets interspersed with some journalist’s pointless commentary. The article is entitled, “The Overturning Of Bill Cosby's Conviction Is Being Met With An Outpouring Of Shock And Disappointment.” Here’s how some self-described comedian person cited in the article expressed her own “shock and disappointment”: 

Lane Moore @hellolanemoore

i never wanna hear "well did you report it?" again. 60 women accused Bill Cosby, and even with 60 accusers we took years to convict, and now he's going free anyway. there are no consequences for rape and rapists know that. so let's be real: rape is fully legal in this country.

This person then goes on to pose the profound question, “What is the point of making rape illegal if no one actually cares if anyone gets raped?” before adding, “just say rape is legal because it is.”

Maybe attempting to refute a Twitter comedian’s irrational outburst is a self-evidently ridiculous exercise. But just for the record: according to the Prison Policy Project, as of 2020, there were approximately 182,000 people in state prisons and jails for committing crimes of rape or sexual assault. Add in federal prisons, and the approximate number of people incarcerated in the US for sexual assault / rape offenses rises to 198,000 — more than the total population of Little Rock, Arkansas. So, in other words, there are plenty of people in prison for rape. A gigantic amount, in fact. Rape is a crime that plenty of prosecutors are manifestly eager to put people in prison for. A single celebrity not receiving the length of carceral punishment demanded by Twitter comedians doesn’t undermine this reality, no matter how incensed they are that he only spent almost three years in prison in his 80s. While it’s absurd that this apparently even needs to be said, a Court deeming prosecutorial conduct to have been a violation of a defendant’s civil liberties does not remotely equate to rape somehow being de facto legal in the US.

The report from the Prison Policy Project further notes, “emotional responses to sexual and violent offenses often derail important conversations about the social, economic, and moral costs of incarceration and lifelong punishment.” One would not expect right-wing proponents of vengeful carceral punishment to have any sympathy for this perspective. But for left/liberal media campaigners who just spent a year spouting abolitionist slogans about the depredations of the criminal justice system, and style themselves ideologically opposed to US carceral power, the inability to grasp the existence of contradictions in this attitude is really just amazing. What their attitude boils down to is this: civil liberties are irrelevant, basic fairness in prosecutorial conduct is irrelevant, and a geriatric Bill Cosby should be in prison because he’s the object of a social movement’s moral opprobrium. In an irony that few will ever appreciate, this is essentially the exact same logic which caused the US to become the most bloated prison state on earth.

As I mentioned to one of the nation’s leading #MeToo activists, actress person Amber Tamblyn, she and so many like-minded “influencers” should really consider rebranding as pro-incarceration activists. Because that’s the inescapable outcome of the “change” to the justice system they seem to be calling for — greater leeway for cops and prosecutors to put people in prison, and keep them locked up. That’s just what it is. You can dress it up in whatever kind of highfalutin, socially-conscious language you want, but the inextricable policy result of the “change” you are demanding is obvious for anyone to see — if they can manage to momentarily dial down the emotional outrage meter. And it’s entirely inconsistent with any claimed fidelity to civil liberties.

Why is any of this important? Not because Bill Cosby specifically is owed some sort of impassioned public rehabilitation. Anyone is free to form their own judgments about Cosby’s behavior based on what’s in the public record.

The importance of the Cosby episode lies in how it once again elucidates the endlessly conflicting impulses at the heart of contemporary left-liberalism, which is becoming something of a theme on this Substack. The point is not to take easy pot-shots at hypocrisy: that’s trivial. Who ultimately cares if some dopey Twitter comedian doesn’t have perfectly consistent political views? What’s important to recognize is that these paradoxes are evidence of the durability of contemporary left-liberalism. Media activists can “brand” as dedicated opponents of an overly-punitive and overly-carceral criminal justice system, then turn around and agitate for the carceral power of the state to be deployed on behalf of their social priorities — and hardly anyone perceives an issue. Why? Because contemporary left-liberalism is possessed of a wondrous flexibility that enables it to latch onto multiple strands of seemingly contradictory public passion all at once, and gloss right over the ensuing tensions — in furtherance of solidifying its grip on the Democratic Party, cultural organs, and the countless other institutions that conservatives are always complaining the Left controls.

It’s necessary to appreciate that what seems like a constant flitting back and forth between mutually exclusive impulses — which, again, to the untrained eye resembles run-of-the-mill hypocrisy — is actually an integral part of mainstream left-liberalism’s ongoing ascendance. Managing such contradictions doesn’t hinder the left-liberal acquisition of power, or overtaking of institutions. It enables this acquisition. Scoffing at garden-variety “hypocrisy” on Substack, or in a snarky podcast, is not going to make any difference.

But just as well, there’s insight here into why so many who attempt to adhere to a consistent set of principles will eventually run afoul of popular left-liberal consensus: it’s an eternally self-justifying, shape-shifting construction — organized around the accrual of power. Civil liberties are fashionable one day and of no use the next. Which makes sense, because civil liberties often need to be invoked to constrain the power that left-liberals are clearly desperate to wield against their adversaries.

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Tune into a livestream discussion of this and other topics tomorrow (July 3) at 1pm EST on Rokfin! Clips will be posted on YouTube afterwards.