How a flare-up at Harvard Law could undermine legal rights for everybody else
If the public record is correct, Harvey Weinstein is a sexual predator. But even he deserves a decent lawyer.
Students at Harvard Law apparently disagree: One of their professors, Ronald S. Sullivan Jr., has come under fire for joining Weinstein's legal team defending him in Manhattan against charges of sex assault. There have been protests, open letters, and an effort to remove Sullivan from his role at the school as a faculty dean.
"You have failed the black women in this community," said one letter, reported at Reason, "not only as one of the few black faculty deans on campus but also as a community leader — someone who we respected and looked to for guidance."
This is an understandable reaction. Weinstein — like many of the men accused in the #MeToo movement — is accused not just of assaulting women but of abusing his power to do so. So many women have spent years, decades, even lifetimes of silence about the abuse they endured rather than confront such power in what seemed likely to be a losing battle. What's a greater signifier of power in America than to have a Harvard Law professor representing you at trial? If assault, harassment, and power go hand-in-hand, it is natural to want to pull at the threads of that power.
Punishing Ronald S. Sullivan Jr., however, is the wrong way to do it.
The American legal community has had, since its inception, one underlying ethic: Even unpopular defendants deserve a decent lawyer. It's why — as many pundits have noted — John Adams served as counsel to British soldiers accused in the Boston Massacre. More recently, that ethic has motivated American lawyers to offer their services to terrorism suspects after 9/11, even in the face of harsh public criticism. Even Hillary Clinton started her career defending a rape suspect. "I had a professional duty to represent my client to the best of my ability, which I did," she said later.
That ethic has, admittedly, been imperfectly realized. If you are poor, you are more likely to have a bad or inadequate lawyer, more likely to be shuffled through the system and penalized, than if you have money. That doesn't mean the ethic is worthless, though, only that we can do better. And if you're not convinced that the principle is worth defending in its own right, there are practical reasons for keeping it anyway.
Simply: If that ethic is abandoned or undermined with Sullivan's punishment, it is not the Harvey Weinsteins of the world who will suffer — he can afford to replace his lawyer with somebody else who cares more about the money and less about the reputational hit. Instead, it will be the criminal defendants who are poor and unpopular who will find it that much harder to find a decent advocate.
Harvard Law Professor Lawrence Lessig understands the stakes.
"I was raped repeatedly as a boy," he told The Atlantic's Conor Friedersdorf. "I would have no problem with Sullivan representing the man who raped me. That's because I have a clear sense of how vicious and arbitrary the criminal justice system can be. That knowledge leads me to believe that we should encourage adequate representation, not scorn excellent representatives. Defending a criminal defendant is not to defend a crime. That understanding is fundamental to a just criminal justice system."
The controversy comes amid a sea change in how we talk about crime in American politics. Sens. Kamala Harris (Calif.) and Amy Klobuchar (Minn.) made their names as tough-on-crime prosecutors — and now face questions about whether they were too tough. In Philadelphia, the new district attorney is working to impose lighter jail sentences on convicted criminal defendants in an effort to reduce America's legacy of mass incarceration. Even President Trump has signed legislation to lighten sentences and encourage rehabilitation.
That is progress. But it is fragile. It is possible only because politicians think that — right now anyway — they won't pay a penalty for being seen as "soft on crime." If Ronald Sullivan loses his job at Harvard for defending an unpopular defendant, though, it's possible that America's leaders start to recalculate the incentives. That the battle is being fought at Harvard Law, which helps shape the thinking and habits of the nation's legal and political elite, makes the controversy that much more alarming.
America's political and legal rights are often put to maximum test by society's worst scoundrels: There is a reason major Supreme Court cases have involved villains and reprobates ranging from Fred Phelps to Larry Flynt. We can add Harvey Weinstein's name to the list. Ronald Sullivan Jr. should get to keep his job as a faculty dean at Harvard. Weinstein is apparently quite detestable, but he deserves a decent lawyer — just like every other American who faces criminal charges.