Due Process Is What Makes America Great

Photo by Paul J. Richards / AFP via Getty Images

I was glad that one of the most accomplished defense attorneys in recent US history, Tom Mesereau, endorsed and circulated my article on last week’s Bill Cosby ruling. Debates over Cosby’s moral probity or lack thereof are beside the point. The essential point is how the virulently angry response to that ruling by the nation’s leading cultural “influencers” goes a long way to highlight a key dynamic underlying the ongoing ascendance of latter-day left-liberalism.

Conservatives love to complain about how this ideology is capturing every major public and private institution. They’re not wrong. But their response is often to take easy pot-shots at the purported “hypocrisy” evinced by proponents of left-liberalism, as though that’s going to somehow curtail the institutional capture they claim they’re so worried about. My aim in that article was to propose that these seeming “hypocrisies” are actually integral to why the ideology is ascendant — because the ideology is infinitely flexible and accommodating, and doesn’t necessitate any kind of internal consistency. Hence why the same people who were chanting prison abolitionist slogans for the past year can then turn around and announce how horrified they are that a person they revile (Cosby) was freed from prison for egregious due process violations.

Another aspect of the Cosby ruling that seems to have been almost entirely ignored by the popular media coverage — which has been ludicrously bad — is the composition of the judicial body that handed down the ruling. All three women justices who currently sit on the seven-person Pennsylvania Supreme Court (two Democrats and one Republican) joined the majority decision ordering the immediate release of Cosby and barring any future retrial.

With that in mind, take a look at what actor-activist person Amber Tamblyn — who admitted that Cosby’s release caused her body to swell with rage — had to say about the ruling. She bemoaned that it was just another instance of women being confronted with the cold realization that they are not “valued equally in the eyes of the law.” In which case, the perpetrators in question of “not equally valuing women” were themselves women. If you’re not an identity-essentialist, then there shouldn’t be anything particularly notable about three women jurists happening to take the pro-Cosby view. But identity essentialism is generally understood to be a significant component of popular left-liberalism or, alternatively, “wokism.” So the fact that women were the ones who handed down this decision would seem to pose a problem for Tamblyn & Co. Don’t expect that to even be acknowledged, though. Grappling with contradictions is not necessary per the construct of contemporary left-liberalism.

Even more insanely, “How the legal system helps men like Billy [sic] Cosby” is the URL of Tamblyn’s New York Magazine screed. Imagine being vigorously pursued on multiple felony charges by a District Attorney despite having forfeited your Fifth Amendment rights against self-incrimination at the inducement of the previous District Attorney, who made a substantive (not “technical”) determination that any prosecution of you would be hampered by a lack of reliable evidence. The state then spends at least $420,000 on not one, but two trials against you (having failed to prove your guilt in the first). Once they are finally able to secure convictions, the state moves to recoup that money from you, i.e. force you to pay for your own prosecution. You then get thrown in prison at age 81. Nearly three years go by. And then when your due process rights are eventually found to have been so egregiously violated that the highest court of jurisdiction orders you immediately discharged, the consensus among the professional activist/media class is that you were somehow afforded “help” by an overly permissive legal system…? If that’s “help,” I would hate to see what Tamblyn envisages as “punishment.”

Though she has slightly different moral inclinations, Tamblyn would fit right in with “tough on crime” crusaders of the past whose activism precipitated the gigantic explosion in the US prison population in the latter part of the 20th century. Before deleting her inadvertently illuminating tweet, Tamblyn explicitly agreed with me that the ultimate ambition of her activism is to make it easier for prosecutors to put people in prison.

Tamblyn’s demand that “we need a victim-centered criminal process” should generally be understood as code for “we need to erode civil liberties in pursuit of carceral punishment that accords with my millieu’s cultural sensibilities.” A similar position was taken by pro-incarceration activists of the past, although they tended to be identified as nasty reactionaries. Tamblyn, on the other hand, is of course a wondrously pure-hearted Progressive.

Writing in 2018, around the time of the height of #MeToo (which also happened to be the same year Cosby was convicted) the Harvard Civil Rights - Civil Liberties Law Review noted: “In the 1980s, the victims’ rights movement found a serendipitous partnership with liberal feminism. In this unlikely marriage of two rather separate interests, the victims’ rights movement gained momentum by focusing on the issue of sexual assault. Some feminists saw injustice in the due process revolution for sex crimes.”

But the Review went on to conclude: “Victims’ rights should not be expanded within the courtroom. Instead, energy should be redirected to developing more appropriate forums for victim and survivor participation, forums that do not rely on the coercion of the state and the threat of incarceration to achieve restorative outcomes.”

You can agree or disagree with this perspective, but it’s a bog-standard civil libertarian viewpoint, the most passionate opponents of which used to be the kind of conservative legal activists who were behind the President’s Task Force on Victims of Crime during the Reagan era. They helped usher in a “victim-centered” mentality that is widely understood to have led to the ballooning of the US prison population in the 1980s, 1990s, and 2000s to mind-blowingly Gulag-esque levels. Calling into doubt the wisdom of that mentality doesn’t require lacking compassion for genuine victims of crime. But it does require appreciation for the paramountcy of civil liberties in restraining the punitive impulses of the state, a concept which seems entirely foreign to the likes of Tamblyn.

The fact that it’s possible for the US judicial system to reorient itself and correct a wrongful prosecution, even in the face of furiously emotional public outcry — as personified by Tamblyn — is a mark in favor of the US judicial system. As excessively punitive and reckless as the system can so often be, that on occasion it provides a bulwark against the whims of public passion is a reason to celebrate. Perhaps even with fireworks and hotdogs. So, Happy Fourth of July and remember to refrain from committing any felonies.