The Kavanaugh hearing and the galling, teeth-grinding hypocrisy of Democrats on criminal justice

· September 28, 2018  
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Kamala Harris, Mazie Hirono
Aaron P. Bernstein/Bloomberg | Getty Images

“So, is she lying or telling the truth?” That is the question on all the minds of the political animals, but that is not the most important question for the average citizen or for those who care about public policy. With a growing trend of sexual accusations coming forth from decades ago lodged against all sorts of people, this is about more than the two subjects of the public spectacle. The most important question is what sort of standard we are going to pursue for criminal justice, whether in a real court or a court of public opinion. Is such an accusation enough to destroy a man’s life in this case or any similar case?

Watching the hearing on Thursday, I was jolted by one observation that was likely lost on almost all of my colleagues in this business on all sides of the aisle. There’s been an underreported but rigorous debate in politics over the past few years about the direction of every aspect of our criminal justice system. There is a near consensus in the political class, and a full consensus among Democrats, that our system is too tough on those accused of crime and and even on those proven to have committed crimes beyond a shadow of a doubt. They feel too many people are in prison for too long and too many people are convicted of crimes. They believe those who committed murder as juveniles should be entitled to reopening of sentencing. This is an ideal that has passed as law in California and is supported on the federal level by every Democrat on the Senate Judiciary Committee (as well as half the Republicans).

Those of us who care about victim’s rights and are concerned about the resurgence of violent crime over the past few years and the leaky justice system that allows thousands of violent criminals to go free on technicalities believe in the exact opposite approach. We believe that we have an under-incarceration problem, that there are too many crimes, particularly rapes, that have gone unreported and many more unsolved and unconvicted, even when there is an accused perpetrator with clear evidence and corroboration to lock him up.

For my views, I’ve been called a “fascist” by opponents. But agree or disagree with my views on criminal justice, I have never suggested and would never suggest that we convict someone without the most basic corroborative evidence, even with a fresh accusation, much less with one from 36 years ago.

It’s with this in mind that my stomach churned watching Democrats essentially contradict everything their entire industry has set out to do with criminal justice. Democrats apparently suddenly believe that because there are thousands of unreported rapes, we should ruin an accused’s life without trying to probe the basic details for corroboration and consistency.

Inadvertently, Democrats made the case against what they call “criminal justice reform” and for Tom Cotton’s position that we actually have an under-incarceration problem. As I’ve noted before, just 34.5 percent of the 121,000 reported rapes were cleared in 2017, according to the FBI. A large number of murders, assaults, and robberies also went uncleared, totaling in the hundreds of thousands. This is just for one year. And if Democrats are correct that there are so many more rapes unreported, that means we do a terrible job deterring these crimes and fundamentally have an under-incarceration problem. For every few “nonviolent, low-level” offenders that they think should be released from prison, there are hundreds of thousands of clearly violent people on the streets. Thus, their entire thesis on crime is built on a lie.

Will Democrats now work with us to increase mandatory sentencing for sexual criminals, including juveniles, after the offenders are duly convicted with the proper evidentiary standards, now that they are suddenly so tough on crime, even without evidence and 36 years later?

Which brings us back to Christine Blasey Ford.

Democrats have been saying from day one that they believe her. They are saying sexual assault victims should never be judged, should never have to provide important details, corroboration, witnesses, or evidence.

Let me submit, much to the consternation of some of my colleagues, that I agree with them. Generally speaking, our system is too tough on the victim and mollycoddles the criminal. It’s about time we start caring about the feelings of the victims and understand what they go through when seeking justice. I only wish Democrats would apply that sensitivity in every other context, most importantly when there actually is evidence to convict the individual.

I don’t question why a sexual assault victim may wait 36 years, why she may not have a basic statement of narrative on context, time, location, or why there is so much inconsistency, including when her own friend contradicts her assertion about the friend’s presence. I don’t question her quirky relationship with air travel. Her testimony is entirely plausible to me.

But given that we are not all-knowing God, we have to first know that this indeed happened and have a reasonable sketch showing that Kavanaugh likely did this in some way. We simply don’t have that. God created the world that way and wants us to do justice. It’s terrible what victims have to go through. But unfortunately, as mere mortals, we, as citizens, members of a jury, or judges, need to know first that the crime indeed happened and was at least likely committed by the accused. If an accuser can’t supply enough information to satisfy the basic evidentiary standards, that is not their fault, and it doesn’t necessarily mean they are not credible. But what are we supposed to do with it? The issue is not whether the accuser is lying, at least not directly; it’s whether we can condemn the accused.

Everything Ford remembers is unverifiable or downright contradicted by those named to have been present, but the things that could be verifiable, she doesn’t remember. But she is 100 percent sure Kavanaugh attempted to rape her. The most important detail was the naming of four individuals present, yet all those people, including her longtime friend, submitted statements under penalty of perjury that no such event occurred and that they didn’t know Kavanaugh at all. Again, I don’t question the asymmetrical outcomes of the memories of sexual assault victims. But what I do know is that if that information cannot be clarified, it’s very hard for us to then point the finger at another human, even as we respectfully and sensitively hear her out. Simply showing some immature behavior and a penchant to drink in high school cannot meet a threshold for accusing someone of attempted rape when the specific allegation has no corroboration. In a criminal context, there’s no way a judge would issue a probable-cause warrant based on her testimony.

Add this to Kavanaugh’s staunch and unflinching denial, full of very vivid exculpatory details, and it is truly a sad day in America if we are now to presume him guilty. His narrative doesn’t completely disprove her allegation, but almost nothing can disprove an allegation from 36 years ago, when all her stated recollections are unverifiable and anything that would be verifiable is not asserted. We have flipped evidentiary standards on their heads if we are now going to force the accused to disprove the allegation beyond all reasonable doubt. In the case of Jim Jordan, he was being forced to prove that he didn’t know others were committing abuse decades ago.

What is shocking is that Democrats disregard the agony of victims even when the accused had already been duly convicted. I’ve spoken to families who’ve lost loved ones killed by juvenile murderers in states where they are now reopening sentencing for the perpetrators. What I’m struck by every time, something I personally (thankfully) cannot relate to, is how the families must go through the pain all over again, because if they fail to show up at the hearing, testify, and get cross-examined, the perp will sure as hell be released.  And these are airtight cases. Yet the political class doesn’t give a single damn about them.

Sadly, in our imperfect world, legitimate victims have to go through hell at every stage of seeking justice against the perpetrator. We simply have no choice, because until we establish proof, we don’t know that the accused individual is indeed guilty or, often, that a crime was even committed. But when we do know that a crime has been committed, why is there zero – I mean zip, nada – regard for victims in this rush to dismantle our criminal justice system? Democrats have built a multimillion dollar industry led by business interests, academics, and Hollywood to go criminal by criminal and reopen their cases for possible injustices. Where is the effort to reopen cases of murderers and rapists who got off on technicalities and bring justice to victims, in cases that would not violate the Fifth Amendment? A whopping 54 percent of the 1.17 million reported violent crimes in this country go uncleared, yet there is no balanced approach in our political system, particularly among Democrats, to address those injustices.

The answer to all these questions is that the political tribalism ailing our system has reached a fatal point – a point of no return to any grounding in morality, consistency, or intellectual honesty.

I have no dog in this fight other than preserving the cornerstone of our criminal justice system. I’m likely one of the few political voices in this country positing the view that Republicans will never fundamentally fix the court simply by “appointing better judges.” I don’t particularly like Kavanaugh as the nominee and would have preferred another choice. I fear Kavanaugh is problematic on some immigration jurisprudence, one of the most important issues dominating the federal judicial system.

But what concerns me most is not Kavanaugh or the court. This is a cultural problem in which an entire industry that seeks to dismantle tough-on-crime laws has now created a standard of “always believing the woman” in sexual allegations. Be very afraid for your sons. They need to be prepared to deal with a world where there new norm is believing any woman who accuses someone of rape with no evidence. That is a recipe for disaster, and we should all recognize that coming shipwreck. But fear not if you are wrongly accused, for Democrats, after insisting that you be locked up with zero evidence, will look to get you out of jail in short order.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.