The Star Tribune recently ran a piece asking whether Minnesota inmates have a right to receive a
new, effective, but expensive, hepatitis treatment. Although I prepared myself to read the
comments, I was, nevertheless, taken aback when I did. They went like this:
“Inmates should not get medication or subsequent transplants. They should lose those rights when they commit felonies.”
“If taxpayers are legally required to take care of them, then allow taxpayers to decide if they should live or die for their crimes. Most of these people are sub-humans and don’t deserve the right to see the light of day.”
“Looks like a new health care option, have a disease? Rob a bank and let the patsies take care if
These comments provide a brutal commentary on how the free public sees fellow citizens who
are in state custody.
“Us” Versus “Them”
Depending on how you count (prison, jail, youth facilities, immigration holds), roughly two to
three million people are incarcerated in the US. No other developed country comes close to our
The United States pays lip service, at least, to a presumption of innocence. Yet most people in
jail, or about one-third of all people who are incarcerated, have not yet had their day in court.
They are presumed innocent. Yet, they are in jail, many for months or even years.
The burden of proving guilt requires proof “beyond a reasonable doubt” because, we believe, it’s
better that ten guilty people go free than that one innocent person be deprived of liberty (William
Blackstone later echoed by Benjamin Franklin). This formulation ultimately comes from the Old
Testament (Genesis 18:23-32) when God and Abraham discuss the destruction of Sodom.
We valorize the tough-on-crime politicians. From local legislator Tony Cornish and Dakota
County Prosecutor James Backstrom, to nationally famous tough-guy Joe Arpaio and Donald
Trump who masterfully magnifies wedges between “us” and “them,” the tough-on-crime
politicians get elected . . . and reelected.
There but for the Grace of God
But look at the law-and-order heroes. Cornish left office in disgrace for violating laws and
ethics, and Arpaio was convicted of violating multiple federal laws but was pardoned by Trump
who is, himself, on audio recording admitting to sexual assault. All three of those men could be
in jail themselves.
This phenomenon occurs not just because of the hypocrisy of these particular men but because,
as I have written before, all of us have committed crimes. Most surveys show that about half of
all American adults have smoked marijuana. Strict application of federal law, which the
Department of Justice is now making an enforcement priority, should land half of us in jail for a
minimum of a year. As I frequently remind my readers, one-in-seven Minnesotans have DWI
arrests, that’s about thirty thousand per year. If you’ve ever picked up an eagle feather, that’s a
Between the fact that we could all land in jail (running an errand without your billfold probably
means you have committed two crimes in Minnesota, driving without your license and without
proof of insurance—charges for which otherwise-law-abiding people who cannot afford a lawyer
or bail can spend time in jail) and simple, human errors should lead to a less reflexively
judgmental attitude toward “criminals.”
Let’s assume police make a mistake a ridiculously low two percent of the time (that they’re right
98% of the time). That means there are about 40,000 innocent people in jail. Forty thousand.
Over a hundred and fifty people have been exonerated from death row!
This “parade of horribles” has focused only on “facts,” numbers and avoided subjective
interpretations such as the effect of race, immigration status, selective prosecution, and corrupt
prosecutors. I haven’t even mentioned the number of people whose incarceration is directly
related to mental illness or addiction. Simple poverty accounts for many who are in jail (if you
can’t make bail, you spend time in jail, lose your job, miss a court appearance because you can’t
lose the next job, get a warrant and higher fines, and so on).
The Fight for Your Rights
The Constitution of the United States gives us rights that allow us to fight back, one case, one
defendant, one wrongfully charged person at a time. You have a right to have your charges
stated publicly (as opposed to being arrested and tried in secret), to have an effective lawyer who
can use the power of the court to subpoena favorable witnesses to testify on your behalf and to
cross examine the state’s witnesses, and to hold the state to the highest burden of proof known in
American law (“proof beyond a reasonable doubt”).
In the US, we have those, and many more fundamental rights, including the right to be cared for,
including being given life-saving medicine, when held in the state’s custody.
Preserving these rights is why I fight every misdemeanor with the same determination and
energy as I fight every felony. One client, one charge, one right at a time.