Polygamy, Cults & Kids - Oh My!

By now most have heard about the raid on the The Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) compound - Yearning for Zion - in Edlorado, Texas. Over 400 children were removed, each of whom has been assigned a volunteer attorney (h/t to Margherita by email) to serve as guardian ad litem; all the children face the prospect of ending up in a secular foster system utterly foreign to the sheltered lifestyle from whence they were abruptly yanked. And separated from mothers who are agonized and desperately want their sons and daughters back.

I submit that to properly disentangle the issues involved in this case and come to any POV that might yield justice, it is necessary to accept that the words "cult," "polygamy" and "child abuse" all taken separately can cause a suspension of rational thought; string them in an indictment of one group and the likelihood for uncritical mob outrage inspiring and backing unwarranted or excessive state action against the group - to the detriment of reason and fairness - increases exponentially.

(A note about the term "cult": In common parlance, it simply translates into "A new religion I don't like." Mormonism proper was regarded as a cult at its inception, and still is by some. Technically, the FDLS, as a breakaway movement from the LDS, is a "sect," but the public antipathy toward sects is often equivelant to that for cults, and the terms often used interchangeably.)

Now of course, the justification for this mass abduction of FLDS children is the specific charge that girls below the age of consent are being coerced into plural marriages, and thereby raped, along with more vague accusations of generalized child abuse. And indeed, the FLDS "Prophet," Warren Jeffs, was convicted last year in Utah for being an accomplice in rape by arranging a marriage between a 14-year-old sect member and her first cousin - behavior the young woman, now 21, denies constituted rape, and she is still married to her cousin. But:

.prosecutor Brock Belnap won the day by arguing that what Jeffs did by urging the two to "go forth and multiply" was no different from sacrificing a young virgin for the harvest - a religious belief, but a criminal act. "This trial has not been about religion and a vendetta," Walls said on the courthouse steps after the verdict. "It is simply about child abuse."
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Indeed, the legal strategy used so effectively in St. George grew out of a "polygamy summit" held in 2003 by the attorneys general of Utah and Arizona. They had brainstormed and decided to launch an aggressive effort to utilize child abuse, domestic abuse and fraud laws to break the cycle of child marriages.

So, we have multiple state attorneys general meeting to get "aggressive" about the FLDS - an unpopular religion on any front - and yet we are supposed to take it as indictment of the group that, my emphasis "[d]eep in the vast mesquite-covered scrubland of west Texas lies the spiritual center of a secretive polygamous sect." No group with nothing to hide would be "secretive," right? Let us consider some history, as recounted by the LAT in `06.

Horrified by stories of rape, incest and men taking young girls as brides, the new governor of Arizona quietly made plans to invade this polygamist settlement in the summer of 1953. Shortly before dawn on July 26, a raiding party of about 120 law enforcement officers - state Highway Patrol, sheriff's deputies and liquor control agents - descended on the community, which was then called Short Creek.

Me and my sister went into the garden and hid behind the bushes, and this policeman came looking for us," recalled Shari Hammon, who was 10 at the time. "He said, `Get out, ma'am,' to my sister, and my sister said, `Get the hell out of here!' "

The rest of the town, members of the Fundamentalist Church of Jesus Christ of Latter-day Saints, gathered in the schoolyard, waving flags and singing "God Bless America." By day's end, families and crying children were separated in a scene that would haunt political leaders for years to come. In all, 36 men were arrested. Authorities loaded 86 women and 263 children aboard buses to Phoenix.

Public opinion turned sharply against the governor, J. Howard Pyle, and he was defeated in the next election. Arizona's state historian claims: "'We are a different society today than in 1953, and [state authorities] could take action without the political risk,' he said."

Yes, and is that a good thing? Is that fact maybe WHY the FLDS "cult" might be secretive and not very happy to see strangers, much less armed state agents at their compound doors?

The reality is, as the execrable Stanley Kurtz writes at NRO, it is polygamy itself - which Kurtz fears will facilitate acceptance of same-sex marriage - that seems evil and threatening to mainstream religions, and to many Americans in general. But why ought it, and especially why ought it be illegal? After all, if a bunch of dirty fucking hippies want to live together at the Make Love Not War Commune, and pretty young adults Flower, Peace, and Star wish to constitute the harem of teh groovy Karmic King, should they and their progeny be left unmolested simply because the parents do not claim to be married? Or what of adults who have multiple sex partners, or those who enjoy a menage a trois?

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Mainstream Mormons did not give up polygamy voluntarily, they did so because of persecution, some of it lethal, and because of this moralistic, 19th century Supreme Court decision. The fundamentalists who nevertheless continue the practice, continue to be persecuted, which causes them to close off and be wary of outsiders, and no doubt that justified paranoia contributes to problems with inbreeding. (h/t mtraven) (Marriage or sex within too close a degree of consanguinity, unless both parties are sterilized, perhaps should be illegal.)

The Amish live closed off from the dominant culture. Hasidic Jews enter arranged marriages - and arranged does not equal coerced. I would not wish to live in patriarchal communities such as the Amish, Hasidic Jews.or as a member of the FDLS. But until and unless there is evidence that the adults in any of these communities are forcibly prevented from leaving should they so choose, how is it any of the state's business that segregated religious communities exist? Or that they arrange (as opposed to coercing) marriages? Or that secular society regards women in those communities as sickeningly subservient to the males?

Another point to bear in mind is a phenomenon that is well-established among religious studies scholars, namely, the "atrocity tale" genre that apostates who leave cults often peddle. (One example being former Roman Catholics who went on the stump and/or published absurd tracts and books - virtually always involving titillating allegations of sexual depravity - that fueled the anti-Catholic Know-Nothing movement in 19th century America.) Some of their claims are true; many often are exaggerated or even false. Thus, while it may be that some behaviors that could reasonably be considered child abuse occur in cults - including FLDS - claims by former members should not be accepted uncritically. (The psychology driving some apostates to exaggerate their experiences in a cult, or even make up tales, is a subject of vast literature, and I'll update on that point if any wish support for it.)

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State and culturally hostility will often drive despised groups to withdrawal and secretiveness. This is wholly understandable. But when this dynamic alone allows hundreds of children to be snatched from their families and left bereft of mothers, something is wrong:

"The state of Texas has confiscated our children on an alleged allegation that has no facts. And now they're holding our children. And we want the children back," a woman who identified herself as Kathleen told CNN's Anderson Cooper..

"They are clean and pure," one mother said of the children. "This is the worst thing happening to them. They are learning terrible things from the questions being asked, things that they have never been exposed to. They have been so protected here.

Children are not exactly known to fare well in state systems, or once placed in the foster care (tho obviously some foster care parents are outstanding human beings). So before we all just discount the FLDS mothers who worry over their snatched, previously protected children (because said moms are purportedly deluded and blind to the "crimes" in their midst), we had better be damned sure that this raid and abduction of their kids has some basis in actual wrong-doings that should be crimes, and not in anti-cult moral panic.

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Absolute immunity for prosecutors is too much

Last week, the U.S. Supreme Court agreed to hear the case of Thomas Goldstein, an ex-marine who was convicted of murdering his neighbor. Goldstein served 24 years before his conviction was thrown out when the main witness against him, a career criminal who was given a deal on his own charges in exchange for his testimony that Goldstein confessed to him in a jail cell, was shown to have lied. Goldstein alleges that the district attorney's office who prosecuted the case routinely used the testimony of so-called "jailhouse snitches" it knew or should have known weren't reliable.

Goldstein's case is unusual because he's suing John Van de Camp, the district attorney who oversaw the office that convicted him. The U.S. Court of Appeals for the Ninth Circuit has allowed Goldstein's case to go forward, setting up the hearing in the U.S. Supreme Court. The suit stems from federal law 42 U.S.C. 1983, which states that ".[e]very person" who acts under color of state law to deprive another of a constitutional rights shall be answerable to that person in a suit for damages," and provides a means for those wronged by government officials to file suit in federal court.

But there are exceptions to Section 1983 suits...In the case Imbler v. Pachtman 1976, the U.S. Supreme Court carved out a gaping exception for prosecutors. Prosecutors have what's known as "absolute immunity" from civil rights suits, provided they're acting in their capacity as prosecutors. Few people enjoy such protections in their own line of work. But this complete shield from accountability is especially problematic when we're talking about prosecutors. It's a job that's already plagued by incentive problems-unfortunately, we tend to measure a prosecutor's performance based on how many people he's able to throw in jail, not necessarily by how well he metes out justice.

Rarely, for example, does a prosecutor get public recognition for the cases he doesn't take. So we have people in a position where they have the enormous power to take away someone's freedom, incentives nudging them to err on the side of prosecuting aggressively, and absolute immunity from lawsuits should they overstep their bounds. It's a recipe for disaster.

Generally, it is smart public policy to shield prosecutors from lawsuits when it comes to determining in which cases they'll pursue charges. If we hamstring prosecutors into factoring potential lawsuits into determining whom to charge, we run the risk of bringing politics or the wealth and status of the accused into what should be a question of law, context, and propriety (any more than these things are already factor into such decisions, anyway).

But, I think you could make a good case that absolute immunity takes this idea way too far. Even police officers are given what's called "qualified immunity" from civil rights suits, which in 1983 the Supreme Court determined meant, "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." That sets a hurdle for suits against the police, but not a wall. It might be time to consider applying that standard to prosecutors, too.

But the Goldstein case doesn't even seek to overturn the 1976 decision. That would take an act of Congress - and again, perhaps that's something Congress should consider. Instead, the suit targets Mr. Van de Kamp as the manager of the district attorney's office. It says that he's guilty of negligently overseeing his office, and allowing his subordinates to use unreliable, uncorroborated testimony from prison inmates.

Given the current makeup of the Supreme Court, I'd be pleasantly surprised if they allowed Goldstein's lawsuit to go forward. But they should. Other legal scholars have suggested that prosecutors should be subject to the less stringent but still protective "qualified immunity" standard when they take on the role of an investigator of fact gatherer - traditionally the role of police - in the course of prosecuting a case. That's a good idea, too.

There's plenty of evidence that absolute immunity is allowing some prosecutor's offices to run roughshod over civil rights. The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions.

I recently reported a case in Reason magazine quite similar to the Goldstein case. In 2006, Church Point, La., resident Ann Colomb, 57, and her three sons were wrongly convicted in federal court of running a massive drug operation out of their home, thanks largely to the testimony of several jailhouse informants. Despite the fact that the family's home was modest, and that the sons held down several hard labor jobs and went to school during the years of the alleged conspiracy, the government witnesses - who were offered time off from their own sentences in exchange for their testimony - claimed to have cumulatively sold the family some $500,000 worth of crack each month.

The family was released from prison when it was revealed that the jailhouse witnesses in the case had participated in an information sharing network within the federal prison system. Inmates were sharing photos, case summaries, and even grand jury testimony about pending cases, memorizing the information, then offering to testify in exchange for breaks on their own prison terms. U.S. Attorney Donald Washington's office had been made aware of this network in a prior conspiracy case, yet his subordinates went on to ask some of the same witnesses to testify in the Colomb case. Even after the extent of the network was revealed in the Colomb trial, federal prosecutors attempted to use some of them again in yet another federal drug case.

Ann Colomb now suing Washington's office. Whether her suit will be permitted to go forward may depend on what the Supreme Court rules in the Goldstein case. As it stands, the family is broke from their criminal case. Though they were cleared of all charges, the government has yet to even apologize to them, much less compensate them for the five years they were under suspicion, of the four months they served in prison.

Downgrading prosecutorial immunity would not only go a long way toward puncturing the air of invincibility that pervades some prosecutors' offices, the discovery process in the cases that are allowed to go forward might reveal other cases of misconduct or wrongful conviction.

We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed - if uncomfortable - sunlight on a part of the criminal justice system that has for too long been immune from real accountability.

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(And don't forget your ration of Wicked Thoughts for today)