Cosby Walks


Beyond Frustration: In the Quest for Justice Are We Expecting Too Much?

For many women, entertainer Bill Cosby’s release from prison this week represents a slap in the face.  Cosby’s 2018 conviction stemmed from three counts of aggravated assault for drugging and violating Andrea Constand in 2004. After serving almost three years of a three-to-10 year sentence in Pennsylvania maximum security, the Pennsylvania Supreme Court overturned the conviction, and on Wednesday Cosby walked. Sexual assault survivors consider their dignity and credibility trampled underfoot with each step that Cosby takes outside of prison. 

For many others, however, the reaction is different. Phylicia Rashad, for example, has lauded the decision as one that has corrected a serious wrong. Those who saw Cosby as a target of stale accusations and a corrupt criminal justice system are pleased to see what they believe is justice being done.

Without taking sides here, I want to offer some legal perspective on the Pennsylvania Supreme Court decision and some commentary on what that decision says about our moral expectations of the American legal system. As is always the case with Cosby, this situation is complicated, to say the least.

When You Renege

Legally speaking, the Pennsylvania Supreme Court did not decide the case on a “technicality,” but rather on the constitutional right to due process of law that the Fourteenth Amendment guarantees to everyone–including Cosby. The court reasoned that when one is given a promise of immunity and then waives important constitutional rights like the right to remain silent in reliance on that promise, the prosecution cannot renege.

To allow a prosecution after inducing reliance upon a promise of immunity that causes one to relinquish constitutional rights is fundamentally unfair. It permits prosecutors to seek convictions through false promises, and at the expense of constitutional rights. This is inconsistent with fundamental fairness–an integral part of Fourteenth Amendment Due Process–that process due to people who are charged with committing crimes.

So although I understand the moral outrage many feel at Cosby’s release from prison, reducing his release to the rhetorical trope of a “technicality” fails to capture the significance of the constitutional rights at stake. No one wants to hear about “constitutional rights” when feeling that the legal system has wronged them, but due process of law is not a “technicality.” Due process of law is, instead, a foundational principle of our criminal justice system, and must be protected for anyone accused of committing a crime.

Legalities aside, the moral outrage is real. And this is where I think that we need to revise our expectations of what the American legal system is able to provide us.

Where to Go with Urgent Moral Concerns

We turn to courts to resolve our disputes (civil cases) and to protect society (criminal cases). In doing so, we empower courts to establish rules and principles for deciding these disputes. These rules only work when they apply to everyone–even people who we think are guilty and people who we don’t like. This sort of universality is necessary. What would it mean to have a selective application of legal rules in cases where we want those who are popular to be acquitted? What would it mean to have a selective suspension of legal rules for those who are unpopular who we want to be convicted? It would mean our legal system could never be trusted, or could it?  I think not.

It is for this reason that the legal system is simply not equipped to vindicate our moral outrage. Courts are designed to do one thing: decide cases according to the rule of law. Now, we can debate and discuss whether this is what courts actually do, but that’s a different conversation altogether. The law does not–and cannot– satisfy our most urgent moral concerns.

Our deepest moral satisfaction comes outside of courtrooms, without lawyers. It lies beyond the reach of court rulings. We can only find morality and satisfy its profound demands in our personal interactions and in our hearts and minds, where we must commit to humanizing one another by not engaging in sexually assaultive behavior. We do this, in turn, by recognizing one another’s humanity and respecting it–something that no lawyer, court order, or Supreme Court ruling can force us to do.

We see this problem in the struggle for racial justice. Time and again, civil rights gains are made only to be reversed in a Supreme Court decision, as it is with voting rights for the Black community. Think about it. The Fifteenth Amendment, which guaranteed the right to vote, was ratified in 1870, but it wasn’t until 95 years later in 1965 that the right to vote was secured in the Voting Rights Act of 1965, which would be gutted in a Supreme Court decision in 2013 . For the past eight years, the term “voter suppression” has resurfaced as a way of describing new ways to make voting more difficult in Black communities. In the end, no matter how hard we try, the law is simply inadequate to even remain stable, let alone change racial attitudes, which seem to be worse than ever. We can change the letter of the law, but the spirit of the people remains the same.

Don’t Surrender to Your Frustration

So, are we helpless? Hopeless? Are we forever doomed to a world in which the next problem results from the next solution? What do we do with our frustration?

Jesus tells the story of a widow who wanted to be avenged of her enemies . She confronted a judge who was unjust. Being regularly denied, one would think she would surrender her hopes that he would do right by her. But she persisted. She refused to give up, and one day the judge did what she wanted him to do, not because it was the right thing to do, but merely to put a stop to what he considered an annoyance.

Jesus told this parable to emphasize the importance of persistence in prayer. But like the widow in the parable, we must realize that our relentless spirit must translate into action. Action moves us toward a more just world, not only politically through protest, well-informed voting, and jury service, but also through a serious work of moral reform. We push for social and cultural progress by becoming the change that we seek thorough personal and interpersonal accountability. So when we see harmful racist or sexist attitudes in one another, we condemn them, understanding that by the time courts get involved, the harm is already done. We must do the moral work to prevent that from happening. This work is demanding as it requires much self-reflection and vigilance. Maybe that’s why it’s so easy to expect the courts to do it for us!

Before we go to court, let’s do better at recognizing the humanity in one another. If we do that, then we likely won’t have to go to court at all.


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