The Republican Party, like Sisyphus, is again putting its shoulder to a boulder, hoping to make modest but significant changes in the Electoral College arithmetic by winning perhaps 12 percent of the African-American vote. To this end, they need to hone a rhetoric of skepticism about, and an agenda for reform of, the criminal justice system. They can draw on the thinking of a federal appellate judge nominated by Ronald Reagan.Here's the article he's referencing from the Georgetown Law Review by Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. Grits recommends it highly, but at a minimum GOP leaders should read Will's remarkable summary, which identifies a series of mostly innocence-related public policy reforms he wants Republicans to embrace.
Kozinski advocated greater skepticism of eyewitness accounts and traditional forensics like fingerprints, spectrographic voice identification, arson investigation, and handwriting analysis. He called for recording interrogations and limits on jailhouse snitch testimony. And he suggested defendants falsely confess, as Will put it, "for reasons ranging from a desire to end harsh interrogations, to emotional and financial exhaustion, and to coercive charging of multiple offenses made possible by the overcriminalization of life."
He criticized prosecutorial misconduct, calling for scaling back absolute immunity and creating prosecutorial integrity units. And he suggested "allowing jurors to take notes and ask questions during the trial, and repealing three [federal] felony statutes a day for three years."
Will closed by suggesting a process similar to the one Texas will soon undertake with the Timothy Cole Exoneration Review Commission, whose first meeting is on Thursday of next week (Oct. 29).
Finally, [Kozinski] advocates careful study of exonerations, of which there have been 1,576 since 1989. And for every one, “there may be dozens who are innocent but cannot prove it.” If the error rate is 1 percent, 22,000 innocent people are in prison. If the rate is 5 percent, the number is 110,000. Whatever the number, it almost certainly is disproportionately African-American.In Texas, according to the National Exoneration Registry, there have been 113 exonerations during the period from 2010-2015 that the Exoneration Commission will study. For a red state to commit to analyzing the causes of false convictions provides solid evidence that Will's suggestion isn't that far-fetched.
If a non-trivial number of Republicans adopted Will's messaging advice in the coming election, it would transform American criminal justice politics. If they were serious about it, and if rhetoric were followed up by deeds, I could see that strategy peeling off African American voters at the margins over the next few cycles. The majority of black folks will remain reliably Democratic for the foreseeable future. But 12 percent is not an over-ambitious goal for the Party of Lincoln. And Will has arguably identified the most likely path for the GOP to achieve it.