Protecting the Innocent

“No person shall be ... deprived of life, liberty, or property, without due process of law” Fifth Amendment to the Constitution of the United States

Perhaps more than anything else we’ve seen during these crazy first months of the ascendancy of the Trumpist revolution, the case of Abrego Garcia strikes at the heart of one of the fundamental principles that makes America great. If Trump is allowed to succeed, that principle will have been damaged, possibly beyond repair, and we’re on the slippery slope that puts the freedom of every American at risk.

Due process has never felt comfortable for many of us. People rage against “criminal’s rights” taking precedence over “victim’s rights”. They want justice. Justice now. They are appalled when someone who they see as obviously guilty “gets off on a technicality”. The system is accused of “coddling criminals”.

But the 4^th Amendment, and the rule of law that has been developed to implement it, isn’t designed to protect criminals. It’s there to protect the innocent.

“It is better a hundred guilty persons should escape than one innocent person should suffer,” wrote Ben Franklin to Benjamin Vaughn in 1785. He was bettering Blackstone who’d declared sixteen years earlier that English Common Law held “that it is better that 10 guilty persons escape, than that 1 innocent suffer”. Over and over American jurisprudence reaches back to that principle as a foundation of the American system of justice. The focus has never been to favor the guilty. It’s an understanding that systems built by humans are always faulty, mistakes will always be made, and we must always err on protecting the innocent, even at the risk of letting the guilty get off.

But people hate letting anyone get away with something. A 2016 Cato Institute survey asked if it were worse to have 20,000 innocent people locked up or 20,000 guilty walking free. The majority opted for the former, but not by much – 60% overall, and only 55% of Republicans. Not surprisingly, the ratio tips with Trump voters - 52% said it’s worse that the guilty go free. That was in 2015. I wonder what the percentages would be today.

Authoritarian regimes are more likely to adopt the opposite principle – “Better to kill a hundred innocent people than let one truly guilty person go free” in Communist China or the Khmer Rouge insisting, as they murdered millions of Cambodians, that they’d “better arrest an innocent person than leave a guilty one free.”¹

So it has been with authoritarians in our own country. Dick Cheney, not surprisingly, when confronted with the fact that 25% of the people subjected to “enhanced interrogation techniques” were later found to be innocent declared “I'm more concerned with bad guys who got out and released than I am with a few that in fact were innocent” and “I’d do it again in a minute.”²

This is why the cases of the deportees are so important. If we had foolproof systems of justice, perhaps it wouldn’t matter, but we don’t, and we never will. So we’ve developed processes and procedures, the long complicated array of evidence and appeals and public trials, all to protect the innocent. When the President, or those officers reporting to him, devises an obscure legal loophole to get around due process, we have kicked away one of the fundamental building blocks that protects the freedom of all innocent Americans. The entire edifice begins to shift. We feel it totter. People love to talk about the “cost of freedom” when it's somebody else who has to pay. Are we truly “the land of the free?” Are we really committed to “liberty and justice for all?” Then there’s no alternative. Demand the return of Abrego Garcia.

1. https://en.wikipedia.org/wiki/Blackstone%27s_ratio#cite_note-31

2. https://nymag.com/intelligencer/2014/12/cheney-alright-with-torture-of-innocent-people.html