Tuesday, July 7, 2015

What is Innocence?

(Observations in the "Presumed Innocent" series)

An invitation to discuss the definition and nature of innocence, and the harms or negative repercussions of wrongful convictions to individuals, institutions, and society is a very open-ended call. Humanity is becoming increasingly globalized, so, while I approach this exploration from the perspective of the systems and operations of law in the United States, I think it important to use the opportunity to also consider these topics from a larger ethical perspective.

Mala en se crimes seem to be crimes in and of themselves regardless of culture, class, gender, age… However, position, access, education, resources seem to “arm” some perpetrators of crime with a greater likelihood of obfuscating trails of evidence (if any do actually exist) which might lead to themselves. This sword of misdirection, similar to the crimes themselves, seems to know no nation, although some states severely limit the freedom, and, therefore, the likelihood that certain groups of people would be able to commit crimes with impunity.

Yet it is an interesting circumstance that in some isolated cultures, with very nascent systems of law, survival itself prompts an upholding of life values which would in themselves prohibit, make unconscionable, mala en se acts. Are these societies “innocent” through their isolation, through their seeming adherence to a code of humanity which protects life, honor, hope?

What is lost when acts of war, or when marauding bands, or the “inexorability of modernization”  invade these places, decimating resources, livelihoods, village and family structures, etc.? And what resists decimation? Humans share an atavistic instinct to survive; humans may learn an altruistic code by which to allow, enable, assist, prosper survival in others.

When humans wrote codes of law (the Magna Carta, 800 years ago, other laws centuries and millennia prior to that), an external structure of checks and balances was erected, in hopes that societies, families, individuals might govern themselves, might enforce, among themselves, codes against deeds mala prohibita and mala en se. And yet there have been witch hunts, crimes in the name of religion, in the name of race, in the name of almost any cause promising affiliation with a cause greater than oneself, a strength, therefore, greater than one’s own, a guarantee, of sorts, that the “others” that might be excluded from social groupings and norms might still be treated equally “under the law” and entitled to certain protections from harm.

However, this has proved to be a flawed bargain. Crimes of passion still occur, and innocent people are convicted of crimes they did not commit. Systems of enforcement are called to task for not protecting society, and called to task for enforcing too harshly, and called to task for enforcing improperly, making mistakes in a rush to fill arrest quotas, to find a suspect and allay public fears, to bring to arbitration/plea bargaining instead of costly trials alleged suspects whom prosecutors feel confident they can find “guilty” of perpetrating crime(s). 

And when it becomes clear, through the dedicated efforts of legal professionals, Innocence Project and other organization members, volunteers, and courageous victims of wrongful conviction, that an innocent person has been incarcerated, punished for a crime they did not commit, already shaken confidence in the social transactions we undertake, accepting and abiding by codes of law which, after all, do not always ensure that truth is found, that innocence is protected, that values of life and the best qualities of humanity are upheld, another crack appears across the armor with which human societies have crusaded forth towards their concepts of modern tolerance and life upon a shared planet, life in the constitutional democracy called the United States, life in the neighborhoods, homes, or in the cardboard shelters erected under bridges and in odd unnoticed corners along the outskirts of our towns and cities.

What is the danger of innocence? In an ideal society, people would recognize an intrinsic responsibility to preserve life against things mala en se and mala prohibita—life of humans, life of animals, life of our interdependently-linked eco-system upon this planet… And the United Nations attempts to arrange an overarching set of codes to approach a system of self-governance, self-enforcement, and social enforcement, to uphold these codes. But our national system, here in the United States, has many other interests, pressures, obstacles to any such idealism. Systems of law are enforcement-based, resting upon a hope that Justice can be “blind,” that juries can be “peers,” that truth might “set us free…”

And innocence? The costs of innocence-lost ripple far beyond taxes levied to fund legislation, enforcement offices, systems of incarceration, rehabilitation, re-entry…
Perhaps not until the costs of guilt are recognized to far outweigh the costs of innocence, on a local, societal, global scale, will it truly be possible to uphold the abhorrence of deeds mala prohibita (which do, after all vary by culture and other influences) and, more importantly, abhorrence of deeds mala en se.

Perhaps not until an abhorrence of deeds which diminish the values to which we ascribe, diminish humanity itself—not until a mature, holistic perspective enables perception beyond the limited self-interests of survival-at-cost, and profit-at-any-cost, might the sanctity of life be valued sufficiently to encourage not only assent to social government, but also responsible self-governance.

Qui tacet consentire videtur, ubi loqui debuit ac potuit—if we remain silent, acceding to a flawed system of justice, a due process which is vulnerable to corruption of intent, omission, commission, the costs of innocence will be waved as summation of those standards of justice to which society might aspire.

But if, in speaking, we might explore the costs of guilt, the costs of abdication of self-responsibility to a social monitor protecting a flawed system, we might, finally, be able to aspire to a more lasting change towards the protection of freedoms, rights, liberties, peace.

If speaking not only of the costs of innocence, but of the ultimately of the far-greater costs of silence, of guilt, we might render a more pure understanding-- of justice, of the search and upholding of truth, of the potential to evolve beyond mere separate, and competing, classes of homo sapiens—to evolve as humankind, as a species capable of so much more.

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