The Maddening Stupidity of Radley Balko

Radley Balko is one of these people who advocates a social process for discovering guilt or innocence rather than courts, and then wonders why innocent people are in prison. He might as soon wonder why people go hungry in socialist countries, when everyone who talks about it agrees that they should be fed.

Balko seems particularly proud of his article “The maddening irrelevance of Charlie Vaughn’s innocence”. Balko tells the story of a retarded guy who was coerced to swear lies that he and some other people committed a murder. The other people eventually got out of prison, but Vaughn will die in prison, despite information existing in the abstract in a social process that Vaughn is innocent.

The fact that Charlie Vaughn is innocent is as irrelevant in the abstract as the fact that a person is hungry. Despite collective knowledge being highly valued by the impulses of human instinct, it is only functionally useful in a tribe of a few hunter-gatherers. This is why we have highly evolved rules and systems to turn information into the production and distribution of bread and into determination of guilt or innocence. Like a socialist who throws away that system and then goes hungry, Balko would rather talk to you about Vaughn’s innocence than demand we use the system evolved to determine it, and then wonders why Vaughn’s innocence is as irrelevant as his poverty.

Balko said of Charlie Vaughn “The system doesn’t care if he’s actually guilty.” This is false. What Balko means is the social process does not care if Vaughn is guilty. Balko demands courts be delivered on cue, as ritual ceremonies to stamp findings that Balko has already discovered socially. Like if we figure out on Twitter that Vaughn is innocent, then a court should be made available to write our demands that Vaughn be released into an order. There can never be enough courts to serve as arms for every such whim that coalesces on Twitter. And even if there could be, this social process will more often free the guilty and torture the innocent.

There is a system that cares if Charlie Vaughn is guilty, it is the state trial court, and it is the only institution in our civilization that is designed to discover guilt or innocence or can possibly hope to. Just like we cannot hope to feed and clothe people just because we care socially, if the price system does not or fails to. We have to use the price system to discover need and means, and supervise production. And the state trial court is required by law to deliver due process, that being such process as is due to discover fact and law. That due process includes punishing perjurers, which Balko says Vaughn is. But Balko does not demand Vaughn (or any attorney) be punished for lying, which is a necessity – which is due – in the only process that has any hope to protect the innocent. What hope would there be to feed people, if we excused fraud at the grocery store, and then turned to socialism to feed those left hungry?

Balko would presumably agree that the process by which the Arkansas trial court convicted Vaughn, did not contain such elements as were due to determine fact. The elements of that process which were due but missing probably included deterring perjury by discovering and prosecuting state witnesses who are found to have lied, and instructing jurors about the extent to which perjury is used, as well as probably a few other things. Again, Balko would say he is appealing to the social and political process, to beg prosecutors and local voters to not coerce prisoners to lie in court, and to not hide that is what they are doing from the jury. But the reason we have courts and rights is because democracy does not protect rights, demand due process, or rationally determine guilt to protect the innocent. Courts do. Due process is a law, not the product of a local 51% vote, specifically because it is not and rarely will be.

Balko’s social impulse is always wrong, and his impulse is the cause of rather than the solution to his problem. Rather than fix trial courts by simply suing in higher courts to force them to follow the law, Balko demands more political influence over trial court processes, maddeningly oblivious to the fact that political forces are what cause government employees to convict the innocent in the first place and always will. When Balko’s ability to socially influence trial courts to not torture the innocent for votes fails, Balko then turns to more social discussion and determination of innocence after the innocent have been convicted, and more appeals courts to mirror that social process, which is of course useless and impossible.

Gossip is not an information-processing or production system. The social process which Balko prefers, is totally unworkable except that it lynches the innocent as reliably as it starves the hungry. We have rights and courts specifically because the social process does not protect rights, and politics does not protect you from the irrational impulses of the crowd but invites them. Instead of going around telling voters that Vaughn is innocent, Balko should go around telling federal courts that state trial courts are violating the law which requires them to provide due process. We have courts and laws because it is a job voters cannot do, we already have a law requiring due process which is all the law we need, and you have to tell courts rather than voters that Charlie Vaughn did not receive due process. Voters literally cannot provide more of a law to protect the innocent than we already have, from that point you have to demand from courts rather than from voters, that the law be enforced.

Whether Charlie Vaughn is innocent is truly irrelevant to me and to Radley Balko. Our job is to make sure courts are following the law, including by demanding in higher courts that lower courts follow the law. What a DNA test said about who is guilty or innocent is irrelevant to you, to me, or to a higher court. The only thing of concern to anyone outside the trial court, is whether the trial court delivered such process as was due. That requires examining only the process, not the facts of a particular case. The moment you demand people concern themselves with whether Vaughn is innocent, rather than with whether trial courts are providing such process as is due, the innocent have lost all their protection in favor of our primitive social impulses and vanity.