The MacArthur Foundation … In bad times as well as good, Part II

GUEST: Dr. Jonathan Fanton
TITLE: The MacArthur Foundation, Part II
VTR: 01/06/09

I’m Richard Heffner, your host on The Open Mind.

And this is our second program with Dr. Jonathan Fanton, American historian and University President who for the past decade has led the huge, the prestigious, the excitingly innovative John D. and Catherine T. MacArthur Foundation. Later this year he turns over MacArthur’s Presidency to his successor.

Well, we began last time talking about Dr. Fanton’s public insistence that “In tough times, foundations must keep giving”, went on to talk about “giving for what?”, discussing MacArthur’s eclectic patterns of philanthropy.

And now more of the same with my beginning, Dr. Fanton, to pick up something you said last time. You used the word “fairness” and in reading through much that you have written, I see that that concept plays a very important role, not just in your decade at MacArthur, but in your life. Expand upon that.

FANTON: Well, my family first came to this country in the 1680’s, we’ve stayed in Connecticut as our home base ever since.

HEFFNER: Stick-in-the-muds, huh? (Laughter)

FANTON: Well, not very adventuresome (laughter) people say. And I guess I have a sense of why they came and what the revolution was fought for and what the basic values are in this country. Fairness, tolerance, openness, a democratic way of governance, a belief in the power of the individual, a commitment to creativity and opportunity … those are basic American values that aren’t Left or Right, but they’ve united us over all these years and put us in good stead and explained why America has been a leader.

Remember we were founded as city upon a hill … meant to be an example for the rest of the world of how people could live together in the spirit of tolerance and govern themselves democratically.

HEFFNER: Do you think those values play the same role now that they did in your years of maturing?

FANTON: You mentioned earlier I was an optimist. I confess I am. I hope not naïve. But I do believe that our country continues to set a standard and I’m hoping in the future that we will do even better in being “that city upon the hill” for the rest of the world.

Part of what MacArthur does as a global institution working in 60 countries around the world is to bring the face of the America to the rest of the world and even at a time when the rest of the world has had doubts about our government, I think they have welcomed MacArthur working on conservation, working on reducing maternal mortality in Africa, protecting human rights in Russia, and Nigeria and Mexico, China … other places we work.

HEFFNER: Well, you know, talking before we went on the air … talking about your years at The New School University. And I said that I had taught there back in the glory days, when it was still almost a university in exile … and that my friend Max Lerner had first gotten me to … down there.

And I remember Max saying … at this table … not physically this table, but here on The Open Mind … asking about how he would define his … his philosophy and he said, “I’m a possibilist”. And as I read through many of your speeches, many of your addresses, I thought there must be something contagious about that. You seem to be … primarily … a possibilist … and I wonder whether that’s seeped into your direction of the foundation. And I was thinking of your project in juvenile justice. And how large a role your sense of fairness, your sense of possibilities, played in, in what you’ve done in that area.

FANTON: Well, one very interesting characteristic of the MacArthur Foundation … 30 years old this year … is consistency. It’s known for creativity, for taking risks, for doing new things. All that’s true. But it also chooses issues and stays with them for a long time.

Presidents come and go, Trustees come and go. But there are a series of fields that we are in … including juvenile justice … that we stay with. So, the important work in juvenile justice, the research work began before my time. And that was a network on adolescent development and juvenile justice that asked a simple question: “Do young people have the same ability at 14 and 15 to weigh the consequences of their acts as adults?”

And if not, shouldn’t they have the opportunity to have a system of justice that is appropriate for them, as opposed to being put into a, an adult justice system.

The study, I think, definitively demonstrated that young people do mature at a rate that means that they’re, they’re in their late teens before they’re able to weigh the consequences of their acts the same way you and I might. And that has lead us, therefore, to start a program called “Models for Change” that seeks to encourage states to put in place juvenile justice systems.

And those systems are characterized by taking account of developmental differences, searching for alternatives to incarceration that teach kids skills that they can use to reintegrate back into society. That have after-care programs, so it isn’t just a judgment and then “good-bye”, but there is continued caring for the youngster.

It takes account of the fact that a high proportion of kids who get in trouble have mental or emotional illnesses and therefore a good juvenile justice system spots and treats those illnesses and … long story short … our network followed a group of kids who went through states with juvenile justice systems and then another group that went through adult systems.

And the kids who went through the juvenile justice system with alternatives to incarceration … all the things I just talked about … were less likely to re-offend in a three year period by 60%. Just think about that … 60% less likely to re-offend and think about what that means.

You’re safer than you would be. And you’re paying less taxes because these kids are being constructive citizens and not re-offending, not getting back into jail.

HEFFNER: Yeah, but you know, I went back recently and looked at the transcript of an Open Mind program from over a half century ago …

FANTON: MmmHmm.

HEFFNER: … with Kvaraceus, Mary Kohler, Judge Kelley saying the same things, with the same determination and the same emotional content …

FANTON: MmmHmm.

HEFFNER: … what does that say about us as a people if we knew those things, if research had demonstrated those things a half century ago?

FANTON: Well, what’s different now is there is a receptivity to the, to the evidence. The evidence is, is, with due respect, scientifically more solid now than before. And what we are trying to do at MacArthur is start a national movement.

We began with four states … Pennsylvania, Louisiana, Illinois and Washington state that are committed to developing a model system of juvenile justice … each different. There not all … it’s not one size fit all … it’s not a MacArthur model. It’s, it’s really locally developed. But with some common principles and themes. And then we’ve chosen a few other themes for what we call “action networks” that will involve other states.

One theme is indigent defense. It’s shocking to see how underrepresented, or poorly represented kids are … doesn’t have to be that way.

A second theme has to do with metal health. I mentioned earlier that a high proportion of kids who get in trouble have emotional difficulties. And so the juvenile justice system ought to take account of that with counseling both during and after the judicial appearance.

And finally, and this is an issue I care very deeply about, disproportional minority contact. The racial disparities in the justice system are intolerable in a democracy.

If you look at the percent of kids who get in trouble and go deep into the system, who are of color versus White counterparts and then compare that to the percent of the population, it’s just shocking to see how heavily burdened the system is with people of color. It just isn’t fair.

And so we have these action networks in 12 other states, so now we have a total of 16 states involved in our models for change program.

HEFFNER: Where is the …

FANTON: And many more states wanting to get involved, so I think the moment is here and that we’re going to see your dream of 40 or 50 years ago realized.

HEFFNER: Where is the opposition to this so-obvious statement of what the morality of it is? What the self-interest of it all is? Where … what, what’s the source of the opposition?

FANTON: Ahmm, I think the source of the, of the opposition is, is ignorance. We need to educate the public about the facts that we just talked about.

HEFFNER: MmmHmm.

FANTON: We did a study that asked a random sample of people “if there were a juvenile justice system in your state that had all these elements … proper defense, diagnosis for mental illness, alternatives to incarceration, after-care and if it were so that kids who had that course of treatment were 60% less likely to re-offend, would you be willing to pay more money to put that system in place?” And 70%, I think, of the public surveyed said “Yes”.

So that suggests to me that when you tell the public … give them good information, they make wise choices. And they’re prepared to make public investment to do the right thing.

HEFFNER: Well that’s a fine statement of a belief in the ultimate wisdom of the people.

FANTON: Remember The New School came out of the Progressive Movement. And one central element of the Progressive belief was that the people are wise and when they’re given good information that they chose wise leaders and make good public choices. And I believe that.

HEFFNER: I know that you believe that because I’ve been reading a lot of what you’ve written, what you’ve said over the years. In fact, I, I want to throw a little side ball … a curve ball, I should say, at you about this.

This business of the developmental rate of young people. We can’t assume that youngsters are equipped to make the same decisions that we make in later years.

Does this ever give you any reason to second guess the lowering of the voting age to 18? Do you think there was some wisdom of the Founders in an older age?

FANTON: Ahmm, well, 18 is the age at which our studies suggest that kids …

HEFFNER: Fully develop?

FANTON: … not fully develop, but are developed enough to go to a adult court, so we’re talking about putting 13 and 14 and 15 year old kids through adults courts. In the studies we show … have supported … show 18 is a, is a …

HEFFNER: So that is the, the age in years.

FANTON: There are individual differences, though here we’re talking about averages, obviously.

HEFFNER: Right. Another question. Fairness … which looms so large for you. I find … when I talk about something in my, my classes akin to the Fairness Doctrine … the old FCC doctrine …

FANTON: Right.

HEFFNER: … that Ronald Reagan made sure to push aside. We seem to believe, or so many of my students seem to believe that “fairness” is too wishy-washy a concept to be a guide. And I wondered what your comment is about that. That “fairness” sounds good, as “liberty” sounds good. But it’s not a real guide. There is nothing solid enough about the concept of fairness. I don’t believe that, but I wonder how you feel about that.

FANTON: Well, I think of fairness as a process, not an outcome. Or a process leading to an outcome. And I, I do believe you can judge whether a process is essentially fair or not. And fair processes can make mistakes. But that feels a lot better than a process that’s blatantly unfair, that’s rigged and that has a predictable outcome.

HEFFNER: So is MacArthur emphasizing procedural matters in the justice system?

FANTON: Well … may I shift to our work on international justice?

HEFFNER: Sure. Please.

FANTON: Ahem, MacArthur … very first grant … 30 years ago was to Amnesty International. So we’ve had a long standing interest in human rights. And currently we support groups like Human Rights Watch and Physicians for Human Rights. Inter-rights that form the backbone of the Human Rights Movement worldwide.

We also work on the ground in three countries where we have offices … Russia, Nigeria and Mexico, three countries making transitions to democracy on Human Rights issues in those countries.

And then, finally, we have had a interest in this emerging system of international justice that probably goes back as far as the Geneva Treaties of 1864, but we think of it … certainly since the Nuremberg Tribunals and then in our own time the Ad Hoc Tribunals on Yugoslavia and Rwanda and hybrids on Sierra Leone and Cambodia and East Timor and so forth.

And finally the international criminal court, the first permanent body there as a court of the last resort to try cases of worst crimes against humanity that cannot be fairly tried within their national jurisdictions.

So MacArthur has taken an interest in this emerging system that isn’t just the ICC, but also these Ad Hoc Tribunals. But very importantly not much understood are regional Human Rights courts and commissions that now exist in Europe and Latin America. Just coming along in Africa and perhaps over the horizon in Asia.

So gradually the world is developing a multi-layer system. National courts, of course. That’s the best place to get justice … close to home. If that works.

If it doesn’t, a next place to go is a regional court or commission. These are all treaty bodies and not every government signed up for them. But many have.

And then finally the International Criminal Court reserved for a handful of the very worst cases. The Lord’s Resistance Army in northern Uganda, the long standing civil war in the Congo. The most prominent case now … Darfur. These are all cases that before the, the new court.

And MacArthur has been working both with the ICC and with the regional courts and commissions, but also with groups like Human Rights Watch and the National Coalition on the Criminal Court … in other words … NGOs to help get evidence, help train judges, help prepare witnesses and victims to participate in the processes.

All this heading for a day in which we hope there is an effective system, multi-layered system of international justice that will deter these awful crimes, these horrific crimes.

HEFFNER: And where, pray tell, has American officialdom be, as you have been taking this stand?

FANTON: Well, America has a …

HEFFNER: That’s really not a nasty question.

FANTON: Oh no, I … I’m, I’m … I welcome it. America has a noble history in supporting international justice. My father was a prosecutor in, in Germany after the, after the war, so this is deep in my, my history, my consciousness.

America has not been a leader in the ICC. It signed the Treaty of Rome, but did not ratify it, so it’s not a member of the Court. This is too bad because American know-how and skills would be, would be very useful to this new institution as it, as it’s starting.

But, the truth is American opposition to the court has been softening. And America has been helping. For example, it did not veto the Security Council referral of Darfur to the court. It could have. It didn’t.

It has been cooperative with certain evidence that it has made available to the court in the Darfur case. There is a provision in the Rome Treaty that gave rise to the Court Article 16 that allows the Security Council to suspend the Court’s action for a year, but it could be renewed. And some nations in Africa were trying to get an Article 16 action to suspend the Darfur case and the US let it be known it might well veto that. So I think you have to say that America has been moving toward a more constructive relationship with the court. And it’s my firm belief that eventually the US will, will join the Court.

HEFFNER: With full support on the part of the American people, or sufficient support?

FANTON: This may surprise you. The … with MacArthur support the Chicago Council on Global Affairs does a survey of American attitudes about international issues every four years. And a couple of years ago they had a whole set of questions on the Court. And the question essentially was “Do you think America should, should join the Court?”.

71% of the public and this is a nationwide survey, not just Chicago, 71% of the public said “America ought to join the Court.” The follow up question was: “Well, wouldn’t it worry you that some American personnel, military personnel, might be brought up before the Court?”

That question knocked the approval percentage down to the high sixties. So even when the argument that’s been most sensitive was put forward, the American people said, “We want to be a member of this Court. We don’t like being on the outside.”

And I, I honestly believe that the American people want to be good partners and participants in international forums whether it’s the International Criminal Court, whether it’s the Global Forum on Migration, which we boycotted. Whether it’s the Kyoto Protocols and, and all the rest.

HEFFNER: So you think that the non-cooperation that has characterized the last eight years is not representative of American thinking?

FANTON: I believe Washington is out of step with how the American people think on, on these issues. And it’s not a Republican or Democratic issue only.

HEFFNER: It’s not wishful thinking on your part? And we’re talking real to real …

FANTON: Well …

HEFFNER: … here.

FANTON: … maybe you’ll have me back …

HEFFNER: No one’s watching.

FANTON: … well maybe you’ll have me back in four years …

HEFFNER: Yeah.

FANTON: … and you can ask me that question again. And either we will or won’t have made progress in joining the Court and other international forums …

HEFFNER: Our ox could be gored pretty rigorously the more we move into this area, couldn’t it.

FANTON: I’m not sure I understand the question.

HEFFNER: We could be in … it’s a question you raised with, with others …

FANTON: Oh … yeah …

HEFFNER: … we could be endangering some in our own country with universal principles of justice and fairness. There have been those who have said Nuremberg trials in terms of some of the activities …

FANTON: MmmHmm.

HEFFNER: … in Iraq. Do you feel that there is anything to that concern that we may be putting our own officialdom at jeopardy?

FANTON: I really don’t. First of all the US, which participated in the Treaty of Rome took the lead in inserting a provision called “complementarity” that basically says the Court has no jurisdiction if there is a credible process going on within the country.

HEFFNER: So, it’s a way out.

FANTON: So, the US, I think has, you know, a good record of facing up to accountability for its personnel who do things they shouldn’t in war time situations.

So that would be the first line of protection. The second is people thought “Well, there’d be a lot of frivolous charges against Americans” as there have been. The Court’s rejected every single one of them. Every single one of them.

So there is no suggestion here that the prosecutor is going to be picking up cases that are put in fingering Americans.

Third, consider this. What’s the alternative? Before the Court came into being …

HEFFNER: For the alternative, we have one minute …

FANTON: … there was a movement to something called “universal jurisdiction”, where countries like Belgium and others were saying they would try these cases. Our officials are much better protected by the Treaty of Rome than they are by this amorphous universal jurisdiction.

HEFFNER: Dr. Fanton you will have to come back …

FANTON: I’d like to …

HEFFNER: … maybe not just four years from now, but sooner than that to elaborate upon what MacArthur is doing and the paths that what it’s been doing are likely to take us. But thank you so much for joining me today on The Open Mind.

FANTON: Great pleasure to be here. Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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