The Great Debate

Imagine you are driving down the highway at 90 mph where the posted speed limit is 55 mph. As a result of your speeding, you lose control of your vehicle. And you cause a wreck that kills people.

Here’s a sure bet ‑ you will be convicted of a crime. You will admit wrongdoing. And you will be punished.

Now suppose a corporation engages in illegal activity while operating a coal mine. And that illegal activity leads to the death of 29 of its workers.

Here’s another sure bet ‑ that corporation will not be convicted of a crime. And it will not be punished.

The reality is that we live in a two-tier criminal justice system in America, with one level for corporations and one for living, breathing humans.

The credit rating agency, Standard & Poors, announced Monday that it was the target of a civil lawsuit by the Justice Department for its actions in rating the complex securities that played a major role in the 2008-2009 financial collapse.  The company also said that it had not been apprised of the details.  It is interesting that the other two major rating agencies, Moody’s and Fitch made no announcements.

There is much that all the agencies should worry about.  What is publicly known — and it is a great deal — was laid out in the two-year Senate investigation led by Senator Carl Levin (D-Mich.), which ended with the release of a final report in spring, 2011.

The committee staff laid out a formidable case. As early as 2004 and 2005, and increasingly by 2006, the email chatter among the rating agency staffs suggested they were expecting a crisis.  One email said: “This is frightening. It wreaks of greed, unregulated brokers and ‘not so prudent’ lenders.” Staff analysts asked why the regulatory agencies hadn’t “come down harder on these guys.”  One wrote worriedly about the possibility of “another banking crisis.”

It’s rare for a judge to express regret over her own ruling.  But that’s what happened Wednesday, when Judge Colleen McMahon of the U.S. District Court for the Southern District of New York reluctantly ruled that the Obama administration does not need to provide public justification for its deadly drone war.

The memos requested by two New York Times reporters and the American Civil Liberties Union, McMahon wrote, “implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men.” Still, the Freedom of Information Act allows the executive branch to keep many things secret.

In this case, McMahon ruled, the administration’s justifications for the killing of select individuals — including American citizens — without so much as a hearing, constitute an internal “deliberative process” by the government that need not be disclosed.

Three murder cases in the news recently would seem to have little in common. Michael Morton is a Texas pharmacist convicted in 1986 of murdering his wife. Jeffrey MacDonald is the Princeton- and Yale-educated Green Beret medical doctor in prison for the 1972 murder of his wife and two small children. The “West Memphis Three” are the teenagers convicted of the 1993 killing of three boys in Arkansas.

One aspect all these cases share, however, is the inordinate attention paid to them. Next month, for example, “West of Memphis,” a documentary produced by Oscar-winner Peter Jackson, opens ‑ at least the third film about the case. As for MacDonald, adding to the stack of books and hours of television already devoted to him, the celebrated documentary filmmaker Errol Morris recently weighed in with a 500-page book, “A Wilderness of Error,” arguing that MacDonald was “railroaded” by “unethical” prosecutors. Morton’s case, meanwhile, has been featured on “60 Minutes” and NPR’s “Weekend Edition” as well as in a New York Times editorial and a recent Times op-ed column by Joe Nocera.

Something is amiss when you compare the media’s fixation on these cases with that of Edward Lee Elmore, a South Carolina man who served 25 30 years for a crime he did not commit. There have been no editorials, no “60 Minutes” reports and, most disturbingly, no investigations. Yet the evidence of prosecutorial misconduct makes what happened to Elmore look far more egregious.