The Duke case is actually a completely different type and I don’t know how I got dragged off into the comparison. The Wilson case is about a bad law applied by an apparently disingenuous prosecutor. The Duke case is about just bald prosecutorial misconduct and professional misconduct by a crowd of Duke professors, the problems there are ethical, not legal.

I completely disagree. I don’t think you have the ability to discern what people’s motives are with the accuracy that you assume. And you have shown that you are prone to jump to conclusions about those motives based on very little information.

I don’t need to play the motives game when I have the text. I’m just dealing with what you said here (you love turning critics of text and concrete policy into questions of motivations–motive hasn’t ever been mentioned in this conversation with the possible exception of the passing questioning of good faith which stemmed from concrete action–but if action isn’t an indicator of mindset, then alot of our social instiutions–not the least, the judicial system as a whole–are on shaky footing indeed). You were the one who took my “both are bad, this is worse” post and contorted it into a gleeful apologia for oppressing the privileged. I’m glad you can believe that both are lamentable (as do I, and I’ve made that quite clear throughout), but a) in world of scarce resources, its not unreasonably to deal with more serious problems first and b) that you believe abstractly or concretely that both or bad isn’t responsive to the argument that society “by and large” (which, FYI, is language admitting of caveats) is devoting more attention to the less serious problems of the more powerful. Since that results in material differences in outcome, we need to remedy the distributional disparity.

“I’m treating both equally” is a facile claim to make here. I’d enlist Ronald Dworkin’s distinction between “equal treatment” and “treatment as an equal”. The example he uses is having one dose of medicine for two patients suffering from a disease, one for whom it is a mild inconvienance, the other for whom it is debilitating and fatal. Equal treatment means flipping a coin to see who gets the dose. Treatment as an equal means giving it to the person suffering more.

That isn’t precisely what’s happening here–this situation is more analogous to either (if I’m generous) giving both patients some advil and calling it equal treatment, or (if I’m cynical) putting the less ill patient in ICU with all the best doctors in the world, while giving the more ill patient a few consultations with hurried generalists that may or may not be able to heal him.

Long story short, “treatment as an equal” requires not just affirmations of attention to the problem, but attention to the distribution and attention to the relative position of the parties.

I deal with the former before the latter

Why not deal with them both at the same time, David? Why prioritize some situations over others when there exists one standard — equality under the law — that can be held true simultaneously across all situations?

It is precisely your impulse to compare and prioritize unnecessarily that causes the impression that you deem injustices visited upon “the privileged” to either be unimportant or even justifiable. Because if you accepted the principle of simultaneous enactment of equality under the law, your comparisons and prioritizations would just be irrelevant.

Making that determination, and critiquing those who treat a sprained ankle like a heart attack while paying comparitively little attention to the collapsed lung (this metaphor may be getting extended) is a perfectly legitimate move.

I completely disagree. I don’t think you have the ability to discern what people’s motives are with the accuracy that you assume. And you have shown that you are prone to jump to conclusions about those motives based on very little information.

By and large, the people who were and are up and arms over the Duke case are not the same as those working on the Wilson case. They certainly aren’t the people pressing for broad-based change in the way our criminal justice system operates. They come out of the woodwork to protest injustice against the privileged, which would be fine if there was a proportionate level of concern for those who don’t have access to resoures, means, or privilege. I find such actions grating and not in good faith.

Your belief that you can discern and pass judgment upon the motivations of every single person (note: your condemnation towards those who are concerned with the Duke case is blanket — you allow no caveats or exceptions) who objects to the gross professorial and prosecutorial unprofessionalism visited upon the Duke lacrosse players continues to disturb me. I don’t know what causes you to believe that you are a mind-reader or that you are authorized to pass judgments about who is sincere and who isn’t, but I’m getting a little tired of being constantly plastered with it.

Contrary to your simplistic assumptions, David, I am capable of believing that BOTH these situations are lamentable at the same time.

I challenge you to point to where I say that the what happened to the Duke players is unimportant. I do think there is a bona fide question of priorities–collapsed lungs are bad, sprained ankles are bad, but I deal with the former before the latter, because the former is significantly more bad than the latter. Making that determination, and critiquing those who treat a sprained ankle like a heart attack while paying comparitively little attention to the collapsed lung (this metaphor may be getting extended) is a perfectly legitimate move. When I noted that Wilson’s case isn’t eliciting the same style of outrage as the Duke case even though its a graver injustice (as even you admit), you said that I was rationalizing injustices against the privileged. Given that I criticized their treatment (calling it “hell”, in fact) in post, that’s paranoia, nothing more.

By and large, the people who were and are up and arms over the Duke case are not the same as those working on the Wilson case. They certainly aren’t the people pressing for broad-based change in the way our criminal justice system operates. They come out of the woodwork to protest injustice against the privileged, which would be fine if there was a proportionate level of concern for those who don’t have access to resoures, means, or privilege. I find such actions grating and not in good faith.

Thank you for bringing this story to the attention of TMV readers. I came across this story earlier this year at Radley Balko’s blog, so it’s good to see that he’s posted an update on this story over at Reason.

As a civil libertarian, I absolutely resent the government’s attempts to regulate consensual activities that occur in the privacy of one’s home–particularly when the government attempts to prohibit certain sexual activities–as if we were still living in a Puritan society.

What happened to Mr. Wilson is an outrage, and I’m glad you’ve brought it to the attention to the rest of the readers at TMV.

And yes, what happened to the Duke basketball players who were falsely accused of rape was an outrage as well.

I would have a much easier time engaging in discussions of the effects of “privilege” if these comparisons weren’t constantly thrown in the face of anyone who complains about injustices visited upon someone other than a protected minority group. When you keep doing this, the message you wind up sending is that you believe injustice against “the privileged” (i.e. whomever wears that label, accurately or not) can be ignored or even supported until all injustices that YOU care about are resolved first.

A further note on Georgia’s Attorney General Thurbert Baker. He is notoriously “tough on crime” and has been willing to go against conventional wisdom in the past. But given the reaction I am starting to here down here, this time he may have really stepped in it.

1) What happened to the Dukies was bad

2) What happened to Wilson was qualitatively worse (Wilson probably wasn’t taking classes at any elite university while in prison, and while harassment sucks, being in jail for two years sucks more).

3) That the Dukies are seen as greater victims than Wilson and thus proof that the privileged are the ones facing real discrimination is a pecuilar conclusion that just might be traceable to the very system of privilege said not to exist/be salient in the first place.

Grift: Also, the original DA was not entirely following “letter of the law”, not in that he did anything illegal necessarily, but that he had alternative options under which to prosecute Wilson, most notably “first offender” status, that he worked very hard not to use. I agree, however, that he should used his discretion to not try the case at all.

I’ll fix the DA/State AG stuff–thanks for the catch

Lynx: I couldn’t agree more–including with letting dangerous folks free too soon. I would caveat that in many ways we can’t do both–we can’t err both on the side of letting people who don’t seem dangerous, are “rehabilitated”, or whose crimes weren’t serious go, and err on the side of insuring that we don’t have repeat offenders. That being said, there are enough cases of extreme negligence on both ends of the equation that we aren’t really at the dilemma of the hard cases yet.

You can’t legislate how people feel.

A few things you may not know. There was a videotape of the party. If there had been no videotape, there would have been no conviction. It was the primary evidence.

Also, the old law was so tortured that if Wilson had been engaged in intercrouse, it would have been a misdemeanor but because it was oral sex he was charged with a felony.

The origin of the law was intended to make it easier to identify true sex offenders. The consequences of the poor wording were never truly seen until Wilson’s case.

At the same time, the Duke case in many ways exemplifies the system working. The three defendants never were sentenced to a day in jail.

They were, however, assumed guilty by a mob of their professors and fellow students, hounded and harassed publicly, and driven out of classes by the certainty that their professors would take out the presumption of their guilt in the gradebooks.

But hey, its ok, because they were “privileged”, right?

It’s the state Attorney General, not the DA. Following conviction it becomes a state matter and to my understanding is out of the jurisdiction of the original DA. To make matters more interesting Georgia’s Attorney General is an African American and a Democrat. He is going sqaurely against the wishes of a significant portion of his own party here and the rumblings are already starting.

Chris, in the original trial the DA was following the “letter of the law”. There is some question as to whether he should have used discretion to prosecute at all. The law had a terrible side affect of cornering a jury into this very kind of verdict with no leeway. That’s why it was subsequently changed the following year.

It gets a little complicated but you can find the background if you look. hint hint