Rights at Risk: The Limits of Liberty in Modern America

“. . . despite protections given through checks and balances in the Constitution and the Bill of Rights . . . Torture produces both truth and lies, and it may be impossible to tell the difference.”

Rights at Risk is as much of a straight-up history as Mr. President by Ray Raphael previously reviewed on nyjb, but it is more of a study of current civil rights inequities.

David K. Shipler points out that despite protections given through checks and balances in the Constitution and the Bill of Rights there remain lacunae where our government denies citizens their rights and can hide the act of doing so.

Rights at Risk is wide ranging, providing the reader case studies of torture by authorities, the Miranda warning, forced confessions, the Sixth Amendment, deportation of illegal aliens, white collar/corporate crime, sentencing guidelines for judges, free speech, and First Amendment rights in high schools and colleges; however, it should be pointed out that Rights at Risk does not cover the very recent civil rights events including Occupy Wall Street or the U.S. government admission of targeted killing of U.S. citizens.

The most recent setbacks to citizen’s rights have come about in response to the events of September 11, 2001. The Patriot Act is a an end-run around the Constitution that allows in terrorist cases secret surveillance without probable cause, domestic spying by the NSA, indefinite detention without trial, and when lawyers are permitted, the violation of attorney-client privilege. Bypassing civil rights leads to not just jailing innocents but also wasting tax dollars in frivolous arrests, useless intelligence gathering, and impotent security measures through security “theater.”

Apart from the Patriot Act, the legal system has often been gamed by police and prosecutors to produce arrests and convictions with minimum effort to discover the truth, creating in effect a conveyor belt from the street to prison.

Torture produces both truth and lies, and it may be impossible to tell the difference. Rights at Risk begins the chapter on torture with a comparison of two separate cases with one significant factor in common: Both suspects were horrifically tortured by their captors. In Chicago in 1982 Andrew Wilson shot two police officers, while Khalid Sheikh Mohammed was a September 11 mastermind. Under torture, Wilson confessed to killings that he did, while Khalid later bragged that he gave false information, telling interrogators what they wanted to hear. The Chicago police learned their torture techniques from serving in the Military Police in Vietnam. Charles Granier, Jr., one of the prison guards in Abu Ghraib, was previously a prison guard in Pennsylvania where he was accused of beating prisoners.

Torture is not unprecedented and the national conversation moved on from ethics to pragmatics. U.S. laws provide for the presence of doctors and psychologists during torture sessions to keep the sessions “clinically humane.” In 2002, laws were passed to shield American interrogators against prosecution, giving torturers and torture doctors immunity in advance.

In the U.S., evidence gained from torture cannot be introduced into trial and the torture of Jose Padilla—a U.S. citizen—resulted in tainted evidence that could not be used. The author also points out that two days after taking office President Obama abolished torture and reduced the CIA’s role in prisoner interrogations. Though there may be irony in that CIA torture techniques were modeled on methods learned from Chinese communists to generate false confessions, there is little doubt that if torture was proven to truly achieve its aims, it would still be allowed.

The purpose of the Miranda warning is to prevent inhumane treatment by providing protection against confessions induced by threats or promises. Although the Miranda warning dates back only to 1966, there is long legal precedent in protecting the vulnerable in recognition of the dignity of silence. That silence is not an admission of guilt was first codified in the Magna Charta in 1215 and placed into English Common Law. It made its way into the U.S. law through the Fifth Amendment.

Despite the Miranda warning, approximately 80% of those who are not guilty willingly sign their rights away and keep talking. This may be in the belief that refusing to talk will raise suspicion and that innocence by itself will be enough to avoid arrest and conviction.

Eliciting confession by gaming the Miranda warning has been supported by two rulings of the U.S Supreme Court. First, the Supreme Court has ruled that staying silent is not the same as invoking your right to be silent. Second, the Supreme Court approves of police lying during interrogations, although there are subtle rules on what is or is not an acceptable lie. For acceptable lies, there are training programs that give questioners tools and techniques to stay within the limits of the courts. One interrogator’s trick is to slip Miranda into the middle of a conversation after incriminating evidence has been given and then give the Miranda warning. The interrogator can then build a case on the pre-Miranda portion.

There is much evidence to show that people given the right psychological pressure will confess to crimes they did not commit. Children and mentally retarded adults in particular tend to both not understand Miranda and be susceptible to psychological pressure. A study of false confessions shows that 20% of 271 convictions were reversed by DNA evidence.

The author presents the case of a 15-year-old in Oakland, California, accused of murder who made a confession to end the stress of an aggressive interrogation. In court it came out that he was actually elsewhere, being held in juvenile detention on the day of the murder.

This particular case led to the later requirement to videotape all statements. In another case a suspect under psychological pressure internalized the accusation and began to believe that he actually committed the crime. Use of psychological pressure to elicit false confessions is just another form of gaming the legal system, and gaming promotes a culture that anything legal is also moral.

Having the right to counsel says little about the quality of counsel and the quality of defense varies from state to state. Forensics is expensive; and outright fabrication cannot be stopped without expensive challenges. A 2008 audit in Detroit detected 10% errors in forensics in shooting cases. The author provides multiple cases of failed defenses handled by underpaid and overworked attorneys. Poverty is just another factor that drives justice from the system.

The court system saves money by using plea bargains. The use of plea bargains have reduced the number of convictions by jury to just 3% of federal and 6% of state convictions. Plea bargains allow judges to accept a guilty plea without having a trial or even requiring the presence of a competent defense lawyer (but as this review was being written, the Supreme Court ruled against limiting access to defense lawyers during plea bargaining). Defendants will plea bargain even if they are innocent to avoid jail time. Pleading guilty for minor crimes often results in community service.

The federal and state governments recognize U.S. immigration policy as being broken. In the first half of 2011, one quarter of all federal prosecutions were for illegal entry of deported aliens. This overwhelms the federal courts with immigration issues and pushes more serious crimes back to state and local systems where public defenders are minimal.

For an illegal alien it is better to go to jail for a year than to plead and get a year suspended because for an illegal alien any arrest leads directly to deportation. Illegal aliens while being held prior to deportation will be separated from their children and will have no recourse to ill treatment. They are beyond reach of the Constitution.

The interpretation of the First Amendment has evolved over time. One limit of the First Amendment protecting free speech was settled during WWI. Free speech is not free if it interferes with raising an army. That the First Amendment protects hate speech also has its limits. In 2005 Ali al-Timimi was sentenced to life plus 70 years for inducing others to conspire against the U.S. He never owned a gun or raised money for violent organizations—or set foot in a country where war was taking place.

Does First Amendment’s protection also end at the school door? Did you know that wearing saggy pants or dying your blue hair in high school could become a Constitutional issue? In high school in 1965, John Tinker wore a black armband to class to protest the American involvement in the Vietnam War. He was told to remove it. The resulting case reached the U.S. Supreme Court in 1969. What a difference four years makes. By 1969 public support for the war was waning and the court voted 7–2 for students’ rights. This led to many similar free speech cases regarding clothing, such as wearing or burning U.S. flags

Protesting a war by wearing an armband is understandable. The same thing can’t be said for the 1980s case that concerned suppressing a student’s banner that read “Bong Hits 4 Jesus.” The court ruled if a student’s speech is school sponsored, whether or not that student is on school property, the expression could be censored.

This case opened the way for a high school’s arbitrary censoring of student newspapers and removal of books from its library. Schools that deny rights will harm the larger Constitutional enterprise in the long term. If you don’t think you have rights then you won’t exercise those rights.

The First Amendment protects speech including (some) hate speech, but hate speech can be used as a form of intimidation in an educational environment, violating the Fourteenth Amendment’s equal protection clause. There’s potential conflict between those two amendments as colleges have implemented “speech codes” to reduce intimidation—but limiting speech violates First Amendment rights. You can’t (always) suppress speech just to spare another’s feelings.

Fear of intimidation also led to revising the New York State Regents exam and removing any reference to race, religion, ethnicity, sex, alcohol, mild profanity—even the mention of Jews from the writing of Isaac Bashevis Singer. High schools have implemented speech codes for an additional reason: for use as a trip-wire on the fear of a future Columbine. Used this way a speech code can lead to the perception of what may have been intended as an act of creativity in response to an assignment as a threat.

Rights at Risk is well written and argued, though after reading case after case of legal and illegal torture, abuse by police, and abuse by prosecutors, the impact tends to blur. What about our legal system stays true from one instant to the next?

Taken as a whole, some injustices are ignored or made worse while others have been caught and rectified; some are in the process of reform, while others are recognized but waiting for the political will to proceed. Over time, have our civil rights protections gotten better or worse? Consider that although President Bush legalized murder, President Obama eliminated it—then legalized it via the targeted killings of U.S. citizens. Or did he?