I am contemplating the price at which we are willing to abandon our principles. Last week, President Barack Obama renewed his 2009 pledge to close the Guantanamo Bay prison and the U.S. Supreme Court held, in Boyer v. Louisiana, that the delay caused by the failure to fund counsel for an indigent death penalty defendant for five years did not violate his right to a speedy trial. These two seemingly-unconnected events have more in common than coincidental timing: Each is evidence that America has surrendered an essential part of itself in the name of fiscal austerity and administrative convenience.
It is a fundamental component of our constitutional character that we treat the bad better than we may want to and better than they may deserve. This self-imposed restriction is the natural outgrowth of John Adams’ famous maxim that it is better for innocence to be protected than for guilt to be punished. Thus, the Bill of Rights not only bars much that was common to earlier brands of justice – compelled confessions, cruel punishments – but also compels us to assist in the defense of those we may despise. Not merely because accusation is not proof of guilt (though that is important), but also because, to put a slight twist on Dostoyevsky, we measure ourselves by how we treat those we want to imprison.
It is often a bitter pill that we do so. Bitter for the victims of crime and their families, who naturally resent public money being spent to assist those accused of harming them. Bitter for the taxpayers, who must foot the bill for public defenders and lengthy trials. And (though ranking a distant third in my estimation), bitter for politicians who, in theory at least, must shoulder the onerous burden of explaining to the public why we "coddle" criminals. Yet, to our immense credit, we largely have resisted the temptation, as the greatest of fictional D.A.’s, Adam Schiff, put it, to "drag the law through the sewer to catch a rat."
Now, however, as we wander deeper into the dark wood of post-9/11 America, the foundation seems to be crumbling under Lady Justice’s feet. Let us begin with the national shame that is Guantanamo, our own, 21st-century gulag archipelago. In late April came the horrifying news of mass hunger strikes and doctor-supervised forced feedings of prisoners there, many of whom have become like characters in a Kafka story: too dangerous, in the Obama administration’s view, to be released, but with too little evidence of guilt to satisfy even a post-Hamdi military tribunal. So they remain in indefinite confinement, designated as "enemy combatants" in a war unlikely ever to have a definable end.
To be sure, many of the Guantanamo detainees would be in prison even if President Obama had lived up to his promise to close the prison four years ago. (As a disappointed Obama-crat, it suits my mood to blame the president for letting his promise languish, but there is plenty of blame for congressional Republicans, too.) But they would be in a civilian prison, in America, their treatment subject to judicial scrutiny – and, though largely symbolic, such a move would have reaffirmed our national commitment to the ideal of humane treatment for those we despise. Yet Guantanamo remains open, largely because of the administrative difficulty of transferring detainees whom we have demonized to a prison on American soil. Call it NIMBY Gone Wild.
Though less dramatic than the recent events concerning Guantanamo, the Boyer decision is just as troubling because it arises from the endemic funding crisis facing our justice system. Jonathan Edward Boyer waited seven years to be tried for capital murder largely, according to the Louisiana Court of Appeals, because a "lack of funding" by the state prevented his court-appointed attorney from being paid. In spite of that fact, a 5-4 majority of the U.S. Supreme Court refused to hold the state responsible for that delay because "most of this delay was caused by the many defense requests for continuances of hearings on the issue of funding."
Leaving aside the astonishing (to an appellate lawyer, at any rate) spectacle of the Supreme Court second-guessing a state court on the facts and procedural history of a case, my real concern about Boyer is the forest, not the trees – i.e., that there was a lack of money to pay for an indigent death penalty defendant’s attorney in the first place. In this regard, I fear that Louisiana is a bellwether, not an outlier. As many state governments, sink further into a sea of red ink, we can expect more Boyers, not less because money for defending the despicable is hard to come by even in the best of times. And, Lord knows, these are not the best of times.
"Conscience do cost," cackles Butchie, sage of the Baltimore’s underworld, to Omar during Season Three of The Wire. I can only hope that our commitment to foot the bill for our national conscience is not destined to become a relic of bygone days.