Identity Politics, Politics

No More Second Chances

Society has walked back the prosecutorial mindset that gave us extreme prison sentences and overincarceration. These days, we use that same judgment on people who run afoul of public opinion.
by Avi Woolf
June 24, 2019
Featured Image
(photo credit: Hannah Yoest)

We live in interesting times.

When I was a kid at the peak of the crime wave in the 1980s and early ‘90s, the entire American political and cultural system seemed dead-set on crushing a horrible plague of rape, murder, drug-related violence and what not that was ravaging communities and innocent people. In those days, no punishment seemed too harsh, no bypassing of the rules seemed unthinkable, no epithet for “criminals” seemed too extreme. As much as hindsight is 20/20 and everyone now blames everyone else for sustaining a system riven with overkill, trampled rights and racial bias, it’s easy to forget that back then, it was all just “common sense.”

Thirty years on, that very real crime wave has subsided, fair-minded people are now able to see how a raw and even primal need for justice and punishment created an system that was absurdly expensive and wasteful on top of all its misjudgments. Worse, it was and often still is one that denies people any sort of real second chance at life and contributing to society.

When I was a kid, the prosecutorial mindset reigned supreme. In some ways, that has changed dramatically. Back then, Donald Trump called for executing of people who were merely suspected of awful crimes. While he hasn’t let go of his specific (and incorrect) beliefs on the guilt of the Central Park Five, even he—however hypocritically—takes pride in supporting second chances for those who were actually convicted.

But even as we live in safer times and are more thoughtful and aware when it comes to criminal justice, the  prosecutorial mindset seems alive, well, and if anything increasing in the realm of public opinion and treatment of individuals both public and less so. Once again, at least as regards accusations of bigotry of varying kinds: no punishment seems too harsh, no degree of excommunication too extreme, no layer of privacy sacrosanct to get at the “bad guys” and extirpate evil.

We saw it most recently when Harvard rescinded the acceptance of Kyle Kashuv, a student from Marjory Stoneman Douglas High School who gained prominence for bucking his classmates and advocating for gun rights in the wake of the horrific shooting at his high school. A raft of racist comments that Kashuv had made on social media “resurfaced” and his apology was not enough for Harvard. He’s hardly the first.

The “resurfacing” of politically incorrect comments (and this never happens by accident) also cost Kevin Hart the chance to host the Oscars and temporarily got James Gunn booted from directing the next Guardians of the Galaxy movie.

It doesn’t even need to be old material. Until a more complete (and complex) picture emerged, the Covington Catholic kids could have suffered the same fate as Kashuv, all because of a short video clip that turned millions of Americans into armchair psychologists.

The overarching trend worries me far more than whether any individual case is reasonable or “justified,” and goes beyond the question of whether Kashuv or any other individual case turned out to deserve what they got or not. No doubt the overincarceration of criminals when I was a kid netted some real monsters who should be locked up forever, too. But the mechanism is such that it makes no difference to the mob whether the person they are after is indeed the Devil Incarnate or an innocent or at least not entirely evil person deserving of a defense or a second chance.

Wherever you are on the political spectrum, that kind of undiscriminating approach should greatly worry you. It should worry you because lots of lives were ruined the last time this happened, and all the teeth-gnashing now makes no difference to the years they lost. It should worry you because mobs are fickle and can and will turn on the nearest and often easiest target. It should worry you because laws can be reformed and amended a lot easier than angry public opinion—even that of a small but very vocal group—can be checked.

This is not a new insight. Back in the 19th century, thinkers like John Stuart Mill and Alexis de Tocqueville, both liberals in the old school, warned about the crushing and dangerous power of public opinion to silence dissent and ruin people who served as targets of their ire, fairly or not. What makes things worse now is the intensity of social media, increased awareness of past wrongs (not in itself a bad thing, mind!), and the nationalization of much of our media means every local story can become a “federal case” overnight. Once upon a time, a person might have been able to leave town and start over somewhere else. Good luck doing that in the age of social media mining.

I don’t have a perfect solution for any of this. But I do have some proposals.

First, we all need to start thinking less like prosecutors and more like fair-minded judges (as much as possible) when we hear stuff that could get our blood boiling. Leaders and influencers on all sides and on all media have a special responsibility here to get their audiences used to calming down and waiting. Whether it be what’s left of our institutions or figures with pull, mobs need to be nipped in the bud whenever and wherever possible.

Second, and no less importantly, we all need to start talking a lot more about what it takes to allow for second chances, what counts as a “reasonable” punishment, when we feel that someone has “paid their debt” for whatever sin they committed (and whether retroactive and sometimes ahistorical damnation is really fair)—just like we have learned to discuss in a reasonable and healthy manner when it comes to law-breakers. We’ve heard the case for the prosecution (and sometimes defense) for innumerable alleged breaches of public decency as defined today. Let’s see a stronger effort to make the case for more leniency and public forgiveness, for improvement that is not just immediate and total destruction.

This won’t be at all easy. Israeli Prosecutor Gideon Hausner famously said at the trial of Adolf Eichmann that “I have with me six million accusers.” In a world of profoundly weakened institutions and democratized discourse, there are often as many if not more accusers as well as standards for punishment and forgiveness, which makes it maddeningly difficult to set any kind of standards at all that enough people will embrace.

Yet try we must. Because the only other option is what we see now: A prosecutorial (and often hypocritical and self-serving) popular mindset that ruins lives on a whim but offers no outs or ways to let bygones be bygones at any point in time. A world where every day is Year Zero for another historical figure who must either be a saint by today’s standards or must go to the dustbin to be forgotten. A world with no tolerance for complexity or any real understanding of forgiveness or social peace.

That’s not a world I want to live in. I hope you don’t either.

Avi Woolf

Avi Woolf is an editor and translator. He has been published in Arc Digital, National Review, and Commentary.