'The Serpent Beguiled Me:' Criminal justice and the use of fear
A noted central Illinois jurist is taking aim at the criminal justice system, some rulings by the current Supreme Court, and the negative effect on the nation from the oft-recurring use of fear to shape political ends in the U.S.
Appeals court judge James Knecht of Bloomington-Normal is the longest-serving judge in the state. He gave a colorful and pointed speech Tuesday evening to the Central Illinois Chapter of the American Civil Liberties Union for McLean, Livingston & DeWitt Counties.
The title of the speech was "The Serpent Beguiled Me — Criminal Justice, Prisons and the Illusion of Originalism." The quote is from the book of Genesis, the words of Eve in answer to God's question about why she took a bite out of that apple in the Garden of Eden. “The serpent beguiled me, and I did eat," she replied.
For Knecht, the serpent, the evil, is the use of fear to change policy and the willingness of the public to embrace that fear.
“In 1995, a political science professor at Princeton, quite conservative, coined the term or the word, super-predator. He predicted a new breed of juvenile offenders in urban areas. Those would, of course, be Black and brown, who had become like a swarm of locusts, who would devastate our cities,” said Knecht.
He said the distortion that study created has had long-lasting, adverse effects.
“The idea would be that we needed to pass laws to treat juveniles more as adults and confine them in prison with lengthy sentences, perhaps even life," said Knecht. "Speeches, news media, racial tropes, words that are ugly, maim, feral wolf packs, kill rape thugs, predators, sub-human. When you use those words, it makes people afraid.”
He likened politicians' use of fear to create the war on drugs to the Red Scare of the 1950s by then-Sen. Joe McCarthy, and in a through-line to former President Trump and Florida Gov. Ron DeSantis, who Knecht called an "opportunist who preaches poisonous drivel."
Knecht does not excuse the left, pointing out that former presidential candidate Hillary Clinton even used the term super-predator in her 1996 campaign, in pandering to public fear. The problem is the super-predator trope is a myth, said Knecht.
“It wasn't true. There were lower rates of juvenile crime from 1994 to 2000. And even thereafter, despite an increase in the juvenile population. The predictions were not just wrong. They were wildly inaccurate. It was bad science,” said Knecht.
The pendulum always swings and having swung so far to crack down on juveniles, Knecht said it has now begun to swing back with rulings that bar the death penalty and most life sentences for juveniles. He said the criminal justice system has always been flawed, has always been a work in progress, and was always imperfect.
He noted fear-mongering and political opportunism are always present; present today in what he said are over-the-top statements about the Safe-T Act that, among other things, will do away with cash bail in Illinois starting in January. It, too, is a work in progress. Knecht said even proponents acknowledge it is flawed, probably needs revision, clarification, and a far better explanation to the public.
“So that you don't believe all that stuff about, well, if it's a second-degree murder, they're non-detainable. Now, that just means they can't post bail, they won't have bail anymore. But that doesn't mean the judge is going to let them out. If they pose a danger to the community, or danger to a person, they're going to go to jail and not have the opportunity to bail out,” said Knecht.
Abortion and women's rights
Knecht also took aim at the interpretation of the U.S. Constitution known as "originalism," used, he said, by conservative justices on the Supreme Court to limit government involvement and intervention in such issues as abortion and women's rights.
He noted one of the nation's founders, Thomas Jefferson, explicitly rejected a static definition of the Constitution, calling it a "living document." Knecht said the founders had no problem at all being precise in their words. For instance, you must be 35 years old to be elected president. And the length of a term of president is four years. He said they deliberately left other terms partly undefined to allow for future growth and change in society: "due process" and "unreasonable search and seizure," for instance.
“They used open-ended terms because they understood they could not see into the future," he said. "They trusted us today, through our courts and our laws and through the political process, to apply those terms as principles for guidance. Not handcuffs.”
The judge dismissed originalism with what he called one highly technical legal term judges and attorneys often use.
“A bunch of malarkey. It is flawed. It is illusory. It is myopic. It is bunkum. Where would we be if we follow originalism and we never had Brown vs. Topeka Board of Education? Because originalism was — Black people didn't count. They weren't people. And that’s sort of the way they fell about women, too,” said Knecht.
He said originalism is a "mask for motivated reasoning" and a pretext for saying the Constitution means what that particular Justice says it means. He tartly disparaged the recent Dobbs opinion overturning the abortion precedent Roe vs. Wade where Justice Samuel Alito said abortion is not deeply rooted in the nation's history.
“That is a ridiculous argument and fails to take into account historic reality,” said Knecht.
In the ruling, Alito focused on state laws from about 1868 to support his statement about abortion in U.S. history, said Knecht, adding "it is intellectual hypocrisy at its best" because it ignores the fact that Benjamin Franklin wrote a how-to book, a best seller in his day, that included step-by-step instructions on how to perform an abortion.
He said Alito ignored the presence of abortion in common law that defines "quickening," the point at which a fetus moves within the womb as a hurdle for abortion. That can happen anywhere from 13 to 21 weeks, depending on the individual. And he said there's a reason abortion is not in the Constitution, even though it was deeply rooted in colonial society.
“There never would have been any need or thought to put it in the Constitution. Because it involved a woman's right. And women had no rights. Why would they be recognized in the Constitution? They couldn't even vote until 1920,” said Knecht.
The judge pointed out the decision also ignores the historical presence of abortion in Jewish law that mainly recognized personhood originating at birth, and not before. He said abortion has been a fact of life in the U.S. for centuries. Yet Knecht acknowledged there was a degree of overreach in Roe vs. Wade.
Even some progressives, such as the late federal judge Abner Mikva, have said Roe hurt the nation because it was ahead of where the national consensus was at the time and created unneeded political strife. Mikvah also criticized the opinion as legally weak.
“I think that’s a realistic view of Roe in terms of legal scholarship. I think that the recent decision by Alito is also very weak, and it's behind rather than ahead of the nation,” said Knecht.
Knecht reminded people the way to get the pendulum, any pendulum, to swing back is to be involved in public life and to exercise a civic duty to make candidates better. He said people can mold, and shape, and sculpt a living, breathing democracy by votes and voice.
Knecht said he believes in government and that politics is "the practice of a noble art when done with a goal of serving all citizens and not just someone's base." And despite threats, and risks, and mistakes, he believes the Republic will survive — as a work in progress.