FBI Director James Comey recently wrote in the Washington Post that he requires all FBI agents to visit the Holocaust museum. I’m very much in favor of people visiting the Holocaust Museum (and FBI agents spending time not trying to put people in prison).
I think, though, that Comey identifies the wrong problem plaguing FBI agents. Comey writes:
Naturally, I want the [Agents] to learn about abuse of authority on a breathtaking scale. But I want them to confront something more painful and more dangerous: I want them to see humanity and what we are capable of.
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Comey is, of course, right. People are capable of horrible things when they don’t look at others as human, when they don’t treat others as people with the same rights and core dignity as ourselves.
But I think Comey is wrong to think of the abuse of authority as separate from what lets good people do bad things. Here is his chief concern:
I want them to see that, although this slaughter was led by sick and evil people, those sick and evil leaders were joined by, and followed by, people who loved their families, took soup to a sick neighbor, went to church and gave to charity.
But isn’t much of the reason that good people do bad things because the people in positions of authority — like, say, the FBI — tell them that the bad things are good to do?
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Yet the message Comey wants his agents to leave with is not “question when your government tells you to do a horrible thing to another person” but, rather, “have a sense of righteous indignation.” Or “triumph over the evildoers.”
For years, until the Fair Sentencing Act, FBI agents helped put black people in prison more than white people for a similar crime — distribution of cocaine. Congress recognized this was racist; it was wrong. Why did these FBI agents — who are presumably the kinds of people who love their families and take soup to their neighbors — help do this wrong thing? Because they were told it was good by institutions and people of authority.
I have not seen many FBI agents who seem to have learned the lesson Comey thinks he is espousing. I have seen them, and the criminal justice system as a whole, dehumanize people on a massive scale.
I remember talking to a client’s family after a detention hearing that I lost. As we stood in the courthouse, the FBI agents on the case came around the corner laughing and singing “Ho ho, hey hey, someone’s going to jail today.” Way to recognize the humanity in others.
One of my law partners also told me about a plea hearing he recently took a client to. Almost 20 agents and prosecutors showed up to watch the client plead; when the judge was off the bench, they all laughed and carried on like it was the best cocktail party they’d ever been to. When the judge came back out, they shut up. As a man sat waiting to hear how bad the worst day of his life would be, Team USA stood fifteen feet away doing a victory dance in the end zone.
It’s almost too obvious to point out the ways that our federal criminal justice system routinely treats people as less than human. You can see that people in federal prison are referred to by number, not by name. Or that the ATF routinely lures people into committing fictitious crimes for no discernible reason but to feed its own institutional engine. Or that your ability to challenge prosecutorial misconduct in a criminal case is often effectively zilch. Or that people are routinely given more time in prison just for standing up to the government and asking for a trial. (That last part is actually in the Sentencing Guidelines.)
To be very clear, America is a far cry from Nazi Germany. But if you want to see an institution that’s capable of ignoring the humanity of others, the FBI is not a bad place to start.
So, to that end, here’s what I would propose FBI agents do in addition to visiting the Holocaust Museum:
(1) Have lunch with someone convicted based on bad testimony from a FBI forensic examiner.
As just about everyone ought to know by now, the FBI has admitted that just about all of their forensic examiners gave bad testimony. Thirty-two of those cases resulted in the death penalty. Fourteen of those folks are dead (though, admittedly, some weren’t executed, they merely died in prison).
If you’d like to learn how state power can hurt people, places where our government — and Comey’s own agency — has hurt people would be a good place to start.
(2) Volunteer to read to the children of people in prison.
Helping another person is the highest kind of service. It reaffirms our basic ties to each other.
When an agent works to send someone to prison, he imposes a cost on that person’s entire family. Sure, there are times when prison is necessary as a last resort when society has failed in other ways. But wouldn’t you trust an agent better to make those calls if he or she really sees all the costs? Including the human ones?
(3) Pick the person in prison you find most sympathetic. Spend time talking to that person about his prison experience.
To their credit, I think good agents already do this. But a system where good agents find people they know, like, and trust who are in, or have been in prison and have them talk to new agents would go along way to help FBI agents see that people in prison — people who commit crimes –- are still, actually, human.
Comey is right that agents need to know how state power strips humanity from its people. But why go all the way to Germany in the 40s? The Holocaust is a singular event in world history. Agents will inevitably walk away thinking to themselves, “That would never happen here.” And they’re probably right. The Holocaust is too big, too alien, too incomprehensible to teach the lesson that Comey wants to teach. It’s too easily distinguished.
The agents would be better served by learning lessons that strike closer to home—closer to how crimes are actually investigated and prosecuted in America. And a good place to start would be from what the FBI itself does to people every day.
Agents need humility and compassion. The best agents already have it. And the rest can learn it better much closer to home.
Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.