Sunday, January 23, 2011

Law Review about The Wire

I read a great law review article recently about The Wire, which is available here. I have only watched a few episodes of this highly-reviewed show, but even these few gave me new insights into a system that I work in every day from but typically only see from one angle. I don’t remember the specific scene or story that hit home with me, only that, after watching it, I felt as if I had more insight into the motivations of the other players in the system, as if I had, however slightly, “reversed roles” (a term associated with psychodrama) with police officers or prosecutors after watching and thinking about this rare, non-melodramatic portrayal of a complex system.

The article made me want to watch the entire series, calling it, “a riveting show: the greatest television series ever made.” While “riveting” shows with compelling drama are important to draw viewers in, what’s often missing from “cop shows,” at least in my view, is truth. I’m not complaining about a lack of nonfiction shows on t.v., only pointing out that, of the vast majority of “cop shows,” most feature some variation of the same old story which essentially places a black hat on the defendant to match the white one given to the pure-hearted prosecutor, or the evil-fighting cop. You know the story, the poor, toiling cop or the outgunned prosecutor, the one who fights for justice all alone, who would have gotten to the killer if it wasn’t for that meddling Constitution, as quoted by the slick defense attorney who clearly wants to put the guilty pedophile back into your kids’ school. It’s the same old story and it’s running in several slightly different versions across cable reruns as we speak.

Thus, the problem isn’t that there are too many fictional shows, only that the one-sidedness of this story, and the repetition of it create archetypes within viewer’s minds and thus create something potentially dangerous: people who stumble into the system for the first time (as jurors or observers, or people who question you at a party about “how do you defend someone you know is guilty?”) with preconceived beliefs, stories which feature defense attorneys as pro-crime, and systemic problems as simple, and solvable, if we’d simply stop that pesky Constitution from getting in the way of “the good guys” who work for the government.

But the system I see, and that these people typically pre-judge, is nothing like the one featured on t.v., (at least outside of The Wire and a few exceptions, like Raising the Bar) in this heavily cliched genre. Here’s one example: since Omaha’s Police have a very powerful union, their contract is correspondingly generous, giving them (the last time I checked) 4 hours of overtime for each court appearance. Thus, when I appear in traffic court in the morning I see less of a call for justice as I do a call for overtime.

These police officers aren’t necessarily greedy, they simply understand that the quickest way to make the most money, to maximize their payment under their contract with the least possible time commitment, is to make a lot of minor traffic arrests. Here’s how it might work: You’re an officer and you work the night shift, getting off in the early morning. If you appear in court, you have to appear in court at 9:00 a.m., but you get overtime pay for four hours for simply showing up. If you arrest someone for driving under suspension, it doesn’t take long and the case is usually wrapped up in under an hour.

In fact, I’ll never forget the look on my client’s face when he told me he had a good case since “even the officer said I should plead not guilty at arraignment and take it to trial.” I had to educate him about the system by explaining that the officer wasn’t giving that advice for his benefit but simply needed him to enforce his right to trial for the four hours of overtime he needed. His shining face in the second row proved it, and also meant the driving during suspension case against my client was a slam dunk, sending the officer home in about fifteen minutes. The City, however, paid him four hours of overtime for that appearance and, who could blame him, he laughed all the way to the bank almost every day.

Sadly, however, hardly anyone within the system was in a position to change it, to save this clear waste of tax dollars In fact, the prosecutor’s attempt to curtail this, which involved asking for money to hire another prosecutor whose job it would have been to secure early pleas and whose salary would be paid many times over in cost savings to the city was met with resistance, likely by the city councilman who knew how powerful the police union was and how they treated politicians who tried to cut into it. In short, the system I saw was complex, driven both by a desire for self-enrichment as well as its obvious goal of law enforcement.

But, while the latter goal was visible, and retold on television many times a night, the less visible goal, that involved the officer who knew how to work the system to maximize his income, was never seen on t.v. In fact, even when I try to tell it here, it likely doesn’t resonate, as it’s complex, not very dramatic and has difficulty competing with the “last honest cop” story that’s deeply imbedded on our minds, put there as we watched Southland, or Blue Bloods, (or fill in the blank) last night.

But the Wire is different. The law review article describes it as “in the business of telling America truths about itself that would be unbearable even if it were interested in hearing them.” While the fact that America isn’t even interested in these “unbearable” truths is depressing, the fact that the Wire ran so successfully is reason for hope. In fact, if the writers and producers of the Wire have figured out a way to tell these stories that captures the attention of us modern “t.v. babies,” who naturally like our drama to reinforce stereotypes rather than uncovering hidden truths, that creates the possibility of a happy ending to this sad story. As the article puts it, the Wire pulls this off as it “demonstrates that complexity and social context can make for a gripping tale.”

Maybe television can educate rather than inculcate, I thought. Then I read further and discover that The Wire educates us about something I see all the time but that is rarely discussed:
The Wire shows us something truly frightening about systemic dysfunction- that most of the harm done is neither dramatic nor venal. Sometimes individuals make heroic or repugnant choices, but the Wire insists on complicating not only the notion of villainy, but also the notion of heroism. It repeatedly presents individual choice as severely constrained, even dictated, by the logic of the system. Harm is done, day in and day out, by regular people trying to do and keep their jobs.

... the viewer is shown how how moral choice is shaped and constrained by systemic forces.... Those who attempt to live within an organizational structure but refuse to obey these rules... are nearly always punished, demoted, forced to resign, banished, murdered...

This reminds me of the Supreme Court case Garcetti v. Ceballos, in which a Deputy District Attorney did his job as a prosecutor and investigated the truth of an affidavit sworn out to secure a warrant. When he found inaccuracies, he recommended dismissing the case, but was met with resistance. When he complained further, he was denied promotion. Shortly after that he transferred, or banished, to the Palookaville Division. His “mistake” was in making an individual choice, rather than a systemic one. If he would have simply passed the potential harm onto the the defendant, ignored his oath and letting the officer’s lie lie (as the system likely demanded) he would have kept his job, perhaps even received a promotion.

While this truth that the Wire reveals, and the real example of it, are depressing, what’s exciting about the show is simply that it was made and that it was successful, running for years on HBO. Thus, while the Wire illustrates that “those who attempt to live within an organizational structure but refuse to obey these rules... are nearly always punished,” it somehow survived what was likely a similar organizational structure, lived to see the light of day, and told important stories that still circulate. In a world filled with the melodramatic stories of which Law and Order is composed, is people’s minds are still open to stories that go beyond the stereotypical, melodramatic stories that make up most of primetime.

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