Coyote Blog

Readers will know I have been sympathetic with the animating goals, though not necessarily with the tactics and policy prescriptions, of Black Live Matter.  I do believe there are problems with police accountability and violations of due process that disproportionately (though not exclusively) affect the black community.  While we have come an extremely long way (I grew up in East Texas and saw a lot of bad sh*t), brown skin can still incur a presumption of guilt that simply should not be there in our justice system.

On the flip side I have sympathy with the animating goals of the Me Too movement, and have been utterly offended by stories like the ones about Matt Lauer's automatic door lock to trap women in his office (the same Matt Lauer NBC may have fired Megyn Kelly in order to bring back some day).  And as in the case of BLM, while I am sympathetic to MeToo problems, I have not agreed with their tactics or policy prescriptions.

So despite having roughly the same reaction to both movements, why do I say that #blm and #metoo may be headed for a collision?  Let's start with #metoo.  This is basically a victim's rights movement -- lamenting that victims do not get a fair shake in the justice system.  In many ways the movement is a direct descendent of movies like Dirty Harry and Death Wish whose theme was that the justice system catered too much to criminals and gave criminals too many rights to the detriment of victims and society.  MeToo argues that "women should always be believed," which in practice is interpreted as meaning that the presumption of innocence and due process for the accused should be dialed back or eliminated.  These would be very familiar ideas to Harry Callahan and Paul Kersey.  So much so that I am almost surprised no director has done a female #metoo version of Death Wish.  Oh wait, Clint Eastwood already made that movie as part of the Dirty Harry series, it was called Sudden Impact.

In this context it is easy to see the potential train wreck that may be coming between MeToo and BLM.  The BLM movement at its core is about people of color being treated as guilty -- by police, by the system, by society -- based on the color of their skin.  BLM is about getting due process for the accused (or merely suspected) where it does not exist today.  Metoo, on the other hand, wants to reduce due process rights of the accused.  These two purposes almost have to come into conflict.

This should not come as a surprise, except perhaps to a generation who grew up in crappy public schools that no longer assign real books like, say, To Kill a Mockingbird.  This literary classic, which in my day was a progressive icon but now is being pushed into the background, was about the trial of a white woman falsely accusing a black man of rape, and how this black man was barely saved in a town where everyone automatically believed the white woman.

But we don't just have to look in fiction for examples, we are seeing it today in universities.  Universities are the one place in America that (due to the mandates of the Obama Department of Education) substantially reduced due process and presumption of innocence for men accused of a variety of sexual crimes by women.  The College Fix is one of the many sites in my feed reader, and it has featured numerous cases of college men suing universities over their being railroaded out of school in kangaroo courts over dubious assault charges.  And do you know what I have observed? A disproportionate number of these men who feel victimized by this system appear to me to be men of color and/or non-European foreigners (example from today).  It should not be a surprise to our SJW friends -- I venture that it is zero surprise to BLM -- that these folks with the least power are hurt the most by the loss of due process rights.

Postscript:  I have written before about where BLM and MeToo went wrong in what were originally good causes.  Here is where I think BLM went wrong.  I can't find where I have talked about MeToo going off the rails in one concise article, so here is a brief description of my view:  For years, and I presume still in some cases today, women have gone to their university or police or employer and reported sexual harassment or sex crime and have sometimes been met with lethargy -- they get patted on the head and told to go away or worse they get blamed for the incident.  But the net result is no serious investigation.  In this context, "believe the woman" makes sense.  A woman's accusations should be treated seriously and get a serious investigation without negative consequences for the woman who reported it.  But for a variety of reasons that desire to have real due diligence in response to accusations has morphed into a desire that the accusation be the same as a conviction.  So we went from a system with no investigation, though with a default to the accused to now a system with no investigation and a default to the accuser.  Neither system makes sense or is consistent with individual liberties and the rule of law and the entire history of our justice system.  "Treat every woman's accusations seriously" would have been a better motto (though maybe with an asterisk for women brought forward by Michael Avenatti).

As a disclosure, I once had a female ex-employee (who I never met face-to-face) accuse me of all kinds of crazy stuff.  The campgrounds I ran were training camps for the Taliban, I was a narcotics dealer, I was harboring fugitives, etc. She posted these accusations on facebook, tried to sue me, wrote letters to the government, tried to get on the news, and even put up yard signs.  She threatened me and my family with pictures of her holding her gun and we had to get a restraining order and a better security system.  It was a nerve-wracking time, and if we had believed all women, I would probably be in Guantanamo now.  By the way, I remember my wife really blasting me for this piece when I said how reluctant I am being alone with a young woman.  I responded to her, "what if I had been alone with [lady described above] for any amount of time?"  She thought for a second and said, "you would have been hosed - she would have accused you of rape for sure."

Last week, I wrote about how much liberal college sex vigilantism reminds me of the right-wing 1970's Death Wish vigilantism.  Here is Ezra Klein proving my point:

For that reason, the law is only worth the paper it’s written on if some of the critics’ fears come true. Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that’s necessary for the law’s success. It’s those cases—particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons—that will convince men that they better Be Pretty Damn Sure.

Good God, I have had many differences with liberals on a variety of issues but I have always made common cause with them on civil rights and criminal justice issues.  I can't believe he wrote this.  What is the difference from what Klein writes and and having a 1960's southern sheriff argue that it is OK to hang a few black men because it has the benefit of making the rest of the African-American population more docile?   Last week I asked:

 It is the exact same kind of rules of criminal procedure that Dirty Harry and Paul Kersey would have applauded.  Unacknowledged is the inevitable growth of Type I errors (punishing the innocent) that are sure to result.  Do the proponents not understand this tradeoff?  Or, just like the archetypal southern sheriff believed vis a vis blacks, do women's groups assume that the convicted male "must be guilty of something".

I guess we have our answer.

In the 1970's, Hollywood produced a number of movies that drew from a frustration that the criminal justice system was broken.   Specifically, a surprisingly large number of people felt that due process protections of accused criminals had gone too far, and were causing police and prosecutors to lose the war on crime.  In the Dirty Harry movies, Clint Eastwood is constantly fighting against what are portrayed as soft-hearted Liberal protections of criminals.  In the Death Wish movies, Charles Bronson's character goes further, acting as a private vigilante meeting out well-deserved justice on criminals the system can't seem to catch.

There are always folks who do not understand and accept the design of our criminal justice system.  Every system that makes judgments has type I and type II errors.  In the justice system, type I errors are those that decide an innocent person is guilty and type II errors are those that decide a guilty person is not guilty.  While there are reforms that reduce both types of errors, at the margin improvements that reduce type I errors tend to increase type II errors and vice versa.

Given this tradeoff, a system designer has to choose which type of error he or she is willing to live with.  And in criminal justice the rule has always been to reduce type I errors (conviction of the innocent) even if this increases type II errors (letting the guilty go free).

And this leads to the historic friction -- people see the type II errors, the guilty going free, and want to do something about it.  But they forget, or perhaps don't care, that for each change that puts more of the guilty in jail, more innocent people will go to jail too.  Movies cheat on this, by showing you the criminal committing the crimes, so you know without a doubt they are guilty.  But in the real world, no one has this certainty.  Even with supposed witnesses.  A lot of men, most of them black, in the south have been put to death with witness testimony and then later exonerated when it was too late.

This 1970's style desire for private justice to substitute for a justice system that was seen as too soft on crime was mainly a feature of the Right.  Today, however, calls for private justice seem to most often come from the Left.

It is amazing how much women's groups and the Left today remind me of the Dirty Harry Right of the 1970's.  They fear an epidemic of crime against women, egged on by a few prominent folks who exaggerate crime statistics to instill fear for political purposes.  In this environment of fear, they see the criminal justice system as failing women, doing little to bring rapist men to justice or change their behavior  (though today the supposed reason for this injustice is Right-wing patriarchy rather than Left-wing bleeding heartism).

Observe the controversies around prosecution of campus sexual assaults and the bruhaha around the video of Ray Rice hitting a woman in an elevator.  In both cases, these crimes are typically the purview of the criminal justice system.  However, it is clear that the Left has given up on the criminal justice system with all its "protections" of the accused.  Look at the Ray Rice case -- when outrage flared for not having a strong enough punishment, it was all aimed at the NFL.  There was a New Jersey state prosecutor that had allowed Rice into a pre-trial diversion program based on his lack of a criminal record, but no one on the Left even bothered with him.  They knew the prosecutor had to follow the law.   When it comes to campus sexual assault, no one on the Left seems to be calling for more police action.  They are demanding that college administrators with no background in criminal investigation or law create shadow judiciary systems instead.

The goal is to get out of the legally constrained criminal justice system and into a more lawless private environment. This allows:

• A complete rewrite in the rules of evidence and of guilt and innocence.  At the behest of Women's groups, the Department of Justice and the state of California have re-written criminal procedure and required preponderance of the evidence (rather than beyond a reasonable doubt) conviction standards for sexual assault on campus.   Defendants in sexual assault cases on campus are stripped of their traditional legal rights to a lawyer, to see all evidence in advance, to face their accuser, to cross-examine witnesses, etc. etc.  It is the exact same kind of rules of criminal procedure that Dirty Harry and Paul Kersey would have applauded.  Unacknowledged is the inevitable growth of Type I errors (punishing the innocent) that are sure to result.  Do the proponents not understand this tradeoff?  Or, just like the archetypal southern sheriff believed vis a vis blacks, do women's groups assume that the convicted male "must be guilty of something".
• Much harsher punishments.   As a first offender, even without pre-trial diversion, Ray Rice was unlikely to get much more than some probation and perhaps a few months of jail time.  But the NFL, as his employer (and a monopoly to boot) has a far higher ability to punish him.  By banning Ray Rice from the league, effectively for life, they have put a harsh life sentence on the man (and ironically on the victim, his wife).  They have imposed a fine on him of tens of millions of dollars.

Postscript:  For those who are younger and may not have experienced these movies, here is the IMDB summary of Death Wish

Open-minded architect Paul Kersey returns to New York City from vacationing with his wife, feeling on top of the world. At the office, his cynical coworker gives him the welcome-back with a warning on the rising crime rate. But Paul, a bleeding-heart liberal, thinks of crime as being caused by poverty. However his coworker's ranting proves to be more than true when Paul's wife is killed and his daughter is raped in his own apartment. The police have no reliable leads and his overly sensitive son-in-law only exacerbates Paul's feeling of hopelessness. He is now facing the reality that the police can't be everywhere at once. Out of sympathy his boss gives him an assignment in sunny Arizona where Paul gets a taste of the Old West ideals. He returns to New York with a compromised view on muggers...

I guess I was premature in portraying these movies as mainly a product of the 1970s, since this movie just came out.

Inevitably necessary note on private property rights:  The NFL and private colleges have every right to hire and fire and eject students for any reasons they want as long as those rules and conditions were clear when players and students joined those organizations.  Of course, they are subject to mockery if we think the rules or their execution deserve it.  Public colleges are a different matter, and mandates by Federal and State governments even more so.  Government institutions are supposed to follow the Constitution and the law, offering equal protection and due process.