When A Right Becomes A Right

For generations, hell even millennia, legal scholars and philosophers have argued about what makes law, where it comes from, and what makes a just law. Natural law theorists posit some higher form of moral obligation (usually, though not necessarily, related to God) through which they filter such questions. Legal positivists, on the other hand, focus on the process and ask whether the way in which a law in enacted renders it just.

Both views have their problems (How do we divine this higher obligation? What about objectively evil legal regimes, like Nazi Germany’s, that nonetheless comport with positivist procedural ideals?), which is why I tend to think of myself as a legal realist. That means that the only real issue in what determining what the law “is” has to do with what the people invested with the authority to make it, interpret it, and enforce it say it is. The question of good versus bad, right versus wrong, just versus unjust, is completely separate from issue of what the law is. To use but one example, I consider our modern Fourth Amendment jurisprudence to be profoundly unjust, but it is what it is.

That debate came to mind listening to the Supreme Court oral argument in the Prop 8 gay marriage case earlier this week. At one point, Justice Scalia tried to pin down Ted Olson on, if there is a constitutional prohibition against discrimination in marriage based on sexual orientation, when did it come to be (via)?

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — sometime after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

Scalia’s game, of course, is tied to his particular mode of interpretation that stresses the original meaning of constitutional provisions. Thus, if it didn’t violate the Constitution in 1868 to ban gay marriage neither does it today. Amend the Constitution, would be Scalia’s druthers.

The problem with that view is that it overlooks how courts work in the real world and how they have worked in the past. For example, a major issue in the Prop 8 case is whether the Court even has jurisdiction to hear the case at all, given that the people taking the case to the Court aren’t the state of California or its elected representatives. That’s because Article III requires there to a be a live “case or controversy” for federal courts to exercise jurisdiction. Unlike top-level courts in some other countries, the Supreme Court can’t issue advisory opinions – it can only decide live cases brought before it. If nobody asks the court to resolve the question, nobody really knows whether something violates the Constitution or not.

More problematically for Scalia’s position, I think, is what the Court frequently reverses course on whether something violates the Constitution or not. It’s not important, or even earth-shattering, that the Court might get something wrong before it gets it right, but ask yourself what, in the interim, is the law? It’s what the Court says it is, rightly or wrongly.

Take, for example, two situations arising out of the Fourteenth Amendment’s guarantee that not state shall:

deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

First, there’s the issue of racial segregation. In 1896, in Plessy v. Ferguson, the Court held that racial segregation did not violated the equal protection clause, yet in 1954, in Brown v. Board of Education, the Court held just the opposite. What had changed in the intervening 58 years? Not the text of the Fourteenth Amendment nor the intentions of those who drafted it. Society had changed, the Court had changed. It had evolved, even.

The same thing happened with interracial marriage. In 1883, in Pace v. Alabama, the Court held that the state’s law against miscegenation – which included criminal penalties, not just civil regulations – did not violate the equal protection clause. Yet, in 1967, in Loving v. Virginia, the Court held just the opposite. Again, what had changed?

There’s an even more recent example with which Scalia is familiar. For more than two centuries the understanding of the Second Amendment in most legal circles was that it protected only a collective right related to militia service, not an individual one. The scholarship on the issue began to turn in the late 20th century and, in 2008, the Court (with Scalia writing the opinion) held, in District of Columbia v. Heller, that it was an individual right that the Second Amendment protects, not a collective one.

So, the question for Scalia and others who worry about when a right becomes a right is whether the individual right to possess a firearm existed before 2008? Did the right to be free from racial discrimination exist before 1954 or 1967? If they did exist, but the Court was wrong in not recognizing it, than what good does it do to identify the right as existing back then?

Going back to the whole legal realism thing, I’ve never been a fan of thinking about rights as things that exist outside the legal/social structure of a particular place. Some things nobody can take away – nobody can make you think certain thoughts or keep you from doing so. On the other hand, the state can certainly down on what you can say in public and keep you from disseminating your ideas. In such a situation references to a free-standing universal right to free speech seem pointless – if you can’t exercise that right, does it really exist?

Which brings us back to Scalia’s basic question – when does a right become a right? The simple answer is when you and your Brethren or Congress or state legislatures or courts decide it does. There’s nothing magical that occurs then, no mystical event. It just means that someone can actually take advantage of the right existing. Until we reach that point, there’s not really anything to walk about.

Feelings Don’t Make Good Policy

West Virginia abolished the death penalty in 1965. We haven’t actually executed anybody since 1959. There are many things about this state that can be embarrassing, but that’s something I’m always proud of. From my perspective, the six states that have abolished the death penalty over the past few years (Maryland is the latest) are just following our lead.

Leave it to a long-term House of Delegates member to try and drag us back into the past.

John Overington, a GOP delegate from Berkeley County, has introduced a bill to bring the death penalty back to West Virginia. This is not a recent change of heart for him – he’s done the same thing for the past 26 years. Thankfully, his bill has been dead on arrival in all those years and, most likely, will be again.

I respect people, like Overington, who think capital punishment is a legitimate part of a proper justice system. I think they’re wrong, of course, but they have deeply held convictions (so to speak), just like I do. I just wish they’d come up with better arguments to support their positions, one that didn’t sound like they were just pulled from the ether. For example:

Overington said he will continue pushing such bills because he thinks the state would be better served if it could execute convicted murderers.

‘You want to live in a just society that is fair, and capital punishment, if somebody is murdered, I think there’s a perception that you have fairness if that person is put to death,’ Overington said. ‘It sort of adds to the fairness of our society and helps make it work. If you feel that our justice system is fair, it helps you believe in it.’

Feelings aside, I’m not sure anybody would use “fair” as the primary descriptor of the American death penalty. It’s disproportionately deployed against the poor, African-Americans, and those without access to high-priced legal help. Add to the mix the fact that those cases become potential career makers for prosecutors and there’s lots of potential unfairness built into the system. But ignoring those problems makes Overington “feel” better about the justice system, so it’s all OK.

On the question of fairness in the justice system, it boggles the mind that Overington is either unaware of, or has overlooked, one of the great criminal justice scandals of the late 20th century that occurred right here in West Virginia, all while Overington was pushing to bring back the death penalty.

Fred Zain was a serologist in the West Virginia State Police crime lab. He dealt with various bodily fluids – semen, blood – left at crime scenes. After a spectacularly notorious rape case against a man who had served five years in prison fell apart when Zain’s work was closely scrutinized. In the end, an investigation ordered by the state Supreme Court of Appeals (and, to be fair, instigated by the Kanawha County prosecutor) revealed fraud on Zain’s part on a massive scale:

Hundreds of blood tests that West Virginia prosecutors have used to link defendants to crime scenes over a 10-year period are now invalid because a former State Police serologist may have fabricated the results, the West Virginia Supreme Court of Appeals has ruled.

At the court's request, an independent team of serologists spent the last five months combing through the testimony of Fred Zain, the State Police serologist from 1979 until 1989. In the 36 cases it investigated, the team said, it discovered that Mr. Zain had lied about, made up or manipulated evidence to win convictions in every single case.

Emphasis mine, because, for fuck’s sake . . ..

All told, 134 convictions were called into question. In an opinion laying out the procedure for challenges those convictions, the court concluded:

The matters brought before this Court . . . are shocking and represent egregious violations of the right of a defendant to a fair trial. They stain our judicial system and mock the ideal of justice under law.

And while the court later concluded that Zain’s fraud wasn’t replicated by other technicians in the lab, the whole system nonetheless failed:

This corruption of our legal system would not have occurred had there been adequate controls and procedures in the Serology Division. [The] report is replete with deficiencies and derelictions . . ..

Of course, problems in crimes labs aren’t unique to West Virginia. But if any state should give the ultimate punishment a wide berth, it’s the state of Zain.

More problematic is that Overington is being guided by another feeling – fear – that’s completely unfounded:

Other than Maryland, all of West Virginia’s neighbors still have the death penalty - and Overington said he fears that West Virginia invites killers by not having capital punishment as a deterrent. However, West Virginia’s homicide rate for the past 10 years is lower than that of all neighboring states, according to FBI data.

Indeed, West Virginia famously has had a low crime rate for years (if not decades). It’s one of the few state ranking lists where we’re consistently near the top. It’s unlikely that killing the odd inmate every few years will make us any safer.

Lest you think Overington is alone in his quixotic quest, he does have some bipartisan support:

The bill has one Democratic co-sponsor, Del. Rupert Philips [Logan County], who said that people he’s talked to while campaigning seem to support it.

‘When’s enough enough? We’re wasting tax dollars trying to prosecute them,’ Philips said. ‘An eye for an eye.’

This is, of course, false. It costs exponentially more for a state to execute someone – or even seek the death penalty without achieving it – than it does to lock someone in a cage for life. Prosecutors and law enforcement investigators would need more money. My colleagues in the state public defender system would need serious reinforcements if they took on capital cases – they are a complete time sink for even the most experienced of litigators. Hell, even my office would need serious expansion for the federal habeas corpus proceedings that would be necessary. Finally, the courts would need revamping. West Virginia has no mid-level appellate court, which would be a must if we’re going to try and execute people.

The bottom line is that not only is Overington’s crusade based only on “feelings,” those feelings are contradicted by empirical evidence. Squishy feelings are an understandable, and maybe even a good place, to start when thinking about an issue. But, eventually, if everything tells you your feelings are wrong, you’ve got to go back and rethink your conclusions.

Friday Review: Harbor Lights

Few albums make such an impression on you that, decades later, you can recall the very first time you heard it.

It’s spring 1993, second semester of my freshman year of college in Morgantown. Finals time. As is the wont of college students, once I was done with each class I sold back as many of my textbooks as possible. Lots of folks used that extra cash for end-of-the-year booze binges. I used mine for something altogether more important – new music.

My main source of music back then, in the days before the Internet (when dinosaurs ruled the earth, kids!), was the Discount Den, which had an admirable supply of both new and used CDs, not to mention other necessities of college life. By which I mean cheap beer and inflatable sheep. But I digress . . .

Bruce Hornsby hadn’t released an album since 1990’s sort of disappointing A Night on the Town. Regardless, he was one of several artists I’d always check on at the Den to see if there was anything new. As it happened, on that day when I was flush with post-finals cash, there was Harbor Lights. I picked it up along with a few other things that I can’t remember. No, I don’t mean the sheep. Why are you asking?

Back in my dorm room in Arnold Hall, my roommate was asleep in the middle of the afternoon, fighting off a migraine. No problem. I whipped out some headphones and settled in at the desk by the window to dig in to my new tunes. I must have listened to something else first, because my first moment with Harbor Lights was with the liner notes, not the music itself.

And what interesting liner notes they were, too. For one thing, this was just a “Bruce Hornsby” album. The Range, with whom he’d had popular success, was gone, save for drummer John Molo. For another thing, the roster of those who showed up to fill their shoes was, well, awesome – Branford Marsalis, Pat Metheney, and Phil Collins, among others.

Musically, the album begins simply with solo piano, almost as if Bruce is clearing the field for what follows. By the time the main “band” for this record – Bruce, Molo, and Yellojackets’ bassist Jimmy Haslip – crank up, it’s clear that something different is going on. I sat by the window with my mouth hanging open. Seriously.

Without a doubt, the exceptional songwriting that’s always been part of Bruce’s thing is there, but now it’s being deployed in the service of music that’s much richer, deeper, and more interesting than his Range days. This is the kind of music you’d expect from somebody who jammed live with everybody from Ricky Skaggs to the Grateful Dead to Bela Fleck. I don’t know if Bruce’s failure to live up to the commercial success of “The Way It Is” finally got the record company off his back or what, but things haven’t been the same sense.

Harbor Lights marked the beginning of what, to me, is Hornsby’s halcyon days (pun intended), when the disparate influences he always gleefully showed off during live shows came into the studio. He’s no longer a household name, but he’s made a career out of relentless touring and musical collaborations. And he’s one of my favorite musicians on the planet.

Details
------------
Harbor Lights, by Bruce Hornsby
Released 1993

Tracks:

1. Harbor Lights (7:11)
2. Talk of the Town (5:11)
3. Long Tall Cool One (4:59)
4. China Doll (5:16)
5. Fields of Gray (4:52)
6. Rainbow's Cadillac (4:37)
7. Passing Through (5:58)
8. The Tide Will Rise (3:55)
9. What a Time (4:03)
10. Pastures of Plenty (6:37)

Players:
Bruce Hornsby (vocals, piano, organ, accordion)
Jimmy Haslip (bass)
John Molo (drums)

with, among others:
Pat Metheny (guitar)
Branford Marsalis (saxophone)
Phil Collins (backing vocals, percussion)
Bonnie Raitt (backing vocals)
Jerry Garcia (guitar)

A Rose By Any Other Name? Sadly, No

As a frustrated writer of short fiction, I’ve become all too familiar with the form rejection. It’s frustrating. It’s also par for the course for an (essentially) unpublished writer. Everybody has to start somewhere, right?

Still, it can be awfully compelling, when receiving the dozenth rejection of a particular story, to think that maybe something else it as work here. Surely, the problem isn’t that your writing simply isn’t good enough. It’s because you’re not a big name, right? It’s enough to almost make you want to buy into this “experiment” reported over at Slate.

Writer and editor David Cameron (not the British Prime Minister, for the record) came up with a clever ruse:

I grabbed a New Yorker story off the web (no, it wasn't by Alice Munro or William Trevor), copied it into a Word document, changed only the title, created a fictitious author identity, and submitted it to a slew of literary journals, all of whom regularly grace the TOC of Best American Short Stories, Pushcart Prize, O’Henry, etcetera and etcetera. My cover letter simply stated that I am an unpublished writer deeply appreciative of their consideration.

The result shouldn’t be all that surprising – Cameron’s story got summarily rejected:

Dear reader, every single one of these journals rejected my poor New Yorker story with the same boilerplate ‘good luck placing your work elsewhere’ auto-text that has put the lid on my own sorry submissions. Not a single personal pleasantry. What’s more, the timeframes tracked perfectly. For example, if the Beavercreek Fucknut Bulletin (not a real journal, but representative) generally takes thirty days to relegate my stuff to the recycle bin, then our New Yorker story—which must have been thoroughly confused at this point—fared no better.

For the record, I’m giving serious consideration to starting the Beavercreek Fucknut Bulletin, or at least printing up T-shirts.

The ultimate insult, however, was that even the New Yorker itself rejected the story, without any hint that the rejection was due to the fact that the story had, in fact, already been published.

As the Slate piece mentions, Cameron’s experiment is not exactly breaking new ground:

There was the guy who sent Jane Austen novels to several U.K. publishers five years ago, as if it made sense to write 19th-century-style fiction in 2007. (Even assuming that some of the publishers did not recognize, e.g., Pride and Prejudice—which I doubt—it would still read like pastiche, and not very interesting pastiche.) There was the other guy who sent part of a lesser Jerzy Kosinski novel around [more on that here – JDB]. That same guy (and they are all, for some reason, guys) submitted the script of Casablanca to a bunch of movie agents—as if the movie business had not changed a whit since 1942, and those agents who were foolish enough not to recognize the classic dialogue were proving some point about how the people at the top have no idea what they’re doing.

Thus, it’s hardly news that the name attached to a story might help it find a publisher. After all, what’s going to sell more copies or trigger more downloads, a fresh story by Neil Gaiman or John Scalzi? Or some story by a schmuck lawyer who writes fiction in his spare time that nobody’s ever heard of? After all, most markets I’m familiar with want to know what other publishing credits you’ve notched up. If the pure merit of the story was enough to get it published, why should they care?

The bigger issue, of course, is why a name is so important when it comes to art? Why doesn’t the work itself stand on its own merit? Consider the saga of Teri Horton.

Horton, a retired long-haul trucker, bought a painting for $5 in a thrift shop as a joke gift to give to a friend. It was too big to fit into the friend’s house, however, so it lived in Horton’s garage until an art teacher spied it and wondered if it was a Jackson Pollock. Horton’s response - “who the fuck’s Jackson Pollock?” – gave the title to a documentary about her later crusade to establish the painting’s authenticity and, more importantly, it’s value. If it’s really a Pollock, it’s worth millions. If not, it isn’t.

But here’s the thing – either you like the painting or you don’t. I happen to like Pollock’s style and those who followed (K, the fiancé, most definitely does not – can this marriage me saved?). While there’s something to be said for going back to the source, at the end of the day the quality should stand on its own. Right?

Of course, I’m guilty of this myself. Take this, from my review of the latest Marillion album, Sounds That Can’t Be Made:

Sounds That Can’t Be Made is a pretty good record. Admittedly, I’m a fanboy, so even bad Marillion album (I’m looking at you, Holidays in Eden) ranks pretty high compared to the rest of the world. But it’s not amongst their best work and, in 2012, that means it’s pretty far down the table.

In other words, had a band other than Marillion (say, maybe, the Beavercreek Fucknut Bulletin) made that album I’d have liked the album better. That’s the flipside of blessing it with higher esteem because of the name attached to it. I’m no better than the slush pile readers Cameron was trying to tweak.

Which should not be a surprise. We all try and make a “name” for ourselves, after all. Writers are no different. Heck, I pimp my one measly credit for all it’s worth. Not because it’s required or expected, but because I want to suggest that, just maybe, I’m not full of shit with this writing thing. Unfortunately, the nature of the business means that the only way I’ll ever find out if that’s true is if someone out there looks past the name (or lack thereof) and falls in love with something I’ve written.

Hey, a guy can still dream, can’t he?

A Legacy Unfulfilled

The COURT: I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.

The “DEFENDANT” in that passage was Clarence Gideon. At the time he made that request in 1962, he was actually wrong. The Supreme Court had held that, unless there was some particular reason that a defendant couldn’t represent himself (mental illness, illiteracy, etc.) he had no right to counsel. Gideon went to trial and was convicted. Then he wrote petition, in pencil, to the Supreme Court. With an assist from future Justice Abe Fortas, Gideon would fundamentally change the American legal system.

Fifty years ago today, the Supreme Court announced its decision in Gideon’s case. Unanimously, the Court rejected its old precedent and held that every person charged with a crime (that carries a sentence of jail time) has a right to an attorney, appointed at state expense if they can’t afford one. Justice Black, writing for the Court, wound up the opinion in lofty, aspirational language:

reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide—spread belief that lawyers in criminal courts are necessities, not luxuries.

To be fair, the writing was on the wall when it came to appointing counsel for indigent defendants. Florida didn’t send its top appellate lawyer to argue the case, instead entrusting it to an assistant attorney general who had never argued before the Court before. And his attempts to bolster his case didn’t go well:

An effort by Jacob to get other states to file an amicus brief extolling the dangers to federalism of requiring counsel for indigent defendants drew only two supporters (Alabama and North Carolina). Meanwhile, the letter from Jacob prompted a young, up-and-coming politician, Minnesota Attorney General Walter F. Mondale, to organize an amicus from states urging that Betts be overruled. Twenty-three states signed on.

It all paid off for Gideon in the end. At a retrial where he was represented by counsel (although not by volunteers from the ACLU whom he turned down), Gideon was acquitted. He couldn’t get back the time he lost in prison, of course, but at least he lived the rest of his life as free man.

I owe a debt to Gideon (and Fortas), since without his case I doubt the public defender system of which I’ve been a part for the past 13 years wouldn’t exist. Although that case didn’t technically deal with the right to counsel on appeal, the entire apparatus in which I work owes its beginning to Gideon’s pencil-written petition.

Alas, 50 years out from the Court’s decision, we as a society still struggle to provide adequate representation to indigent criminal defendants. In fact, that failure has become a common feature in reports about the court system :

A 2004 report by the ABA, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice (PDF), laid out the top concerns. The chief one is that indigent defense services are not adequately funded, leading to an inability to attract and compensate good lawyers, as well as to pay for experts and investigators. Meanwhile, defenders of the indigent are often inexperienced, fail to maintain proper contact with their clients, or are not competent to provide services that meet ethical standards. And judges sometimes fail to honor the independence of defense counsel and routinely accept representation of indigent defendants that is patently inadequate.

There were more specifics, of course, but the report’s bottom line was that ‘40 years after Gideon v. Wainwright, indigent defense in the United States remains in a state of crisis, resulting in a system that lacks fundamental fairness and places poor persons at constant risk of wrongful conviction.

Ten years on, things are in no better shape, particular in state courts. One repeated recommendation of reports on indigent defense is that statewide systems are best as delivery quality representation. Unfortunately, only 24 states have statewide public defender systems. The federal system is both broader and more integrated (IIRC, only one federal district is without a defender office of some kind) and, as a result, generally performs better.

As an example of what it can be like at the state level, check out the situation in Wilkes-Barre, Pennsylvania, detailed recently in USA Today:

If he came back today, Clarence Gideon might rue the quality of legal representation he'd receive. He might not get any at all.

Such was the fate last year of some indigent criminal defendants who walked in the public defender's door here and past Gideon's gaze. They were told that, because of a shortage of staff lawyers, the office was turning down all but the most serious new cases. They were given a letter to show the judge.

Al Flora, Luzerne County chief public defender, says that ethically and legally he had no choice: His overburdened lawyers couldn't take on new clients and do justice to those they already had. He sued county officials — his bosses — to let him hire more lawyers and to stop them from retaliating against him.

That situation may be exceptionally bad, but it’s a good example of problems faced across the country.

We send more people to prison than any other country on the planet. Our greatest grown industry is building prisons. Legislators, at the state and national level, respond to every problem that arises with more laws that define more crimes and require more severe punishments. Yet, for all that, we don’t make sure that the people charged with those crimes get adequate representation. It’s a failure of fundamental fairness.

In Gideon, the Court wrote that:

[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

Sadly, that’s as true today as it was 50 years ago.

Friday Review: The State of Jones

A title is a promise, at least for a work of nonfiction. It’s what draws you in, after all, and convinces you to give a book more attention. The full title of this book by Washington Post reporter Sally Jenkins and Harvard professor John Stauffer is The State of Jones: The Small Southern County That Seceded From the Confederacy. It’s a case that Jenkins and Stauffer don’t make.

Which is a shame, because the story they have to tell is fairly fascinating in its own right and something that a lot of Americans don’t know about. Revolving around a backwoods Mississippi “dirt farmer” named Newton Knight, it’s a tale of racial and class divisions before, during, and after the Civil War. Poor farmers from areas of Mississippi like Jones County had little interest in defending the ability of wealthy elites elsewhere to own slaves. Faced with the horrors of war in places like Corinth and Vicksburg and with families starving back at home due to shitty wartime economics, Knight and a group of others deserted from the Confederate army and headed back home.

Back in the Mississippi countryside, Knight and company organized an armed group that basically made life impossible for the Confederacy in Jones and surrounding counties. In addition to skirmishing with soldiers dispatched to arrest them for desertion, Knight’s group raided Confederate supply lines and tax collectors. It’s fair to say, based on the evidence presented in the book, that Jones County was effectively outside the sphere of Confederate power well before the end of the war.

But that’s not the same as secession. Maybe it’s because I’m a West Virginian and familiar with our unique history when it comes to the birth of the state and kind of sensitive about it, but secession is a formal, political act, not the de facto result of guerrilla military activity. Jenkins and Stauffer never provide evidence of such an act and, in fact, don’t really show whether Knight and his company were more pro-Union insurgents or simply a group of outlaws who gathered together to protect themselves and, as a side effect, cleared the Confederates from Jones.

It’s an important distinction because there was a hot debate when The State of Jones came out about its quality as work of history. Detractors argued that Jenkins and Stauffer massaged the historical record (and filled in gaps with imaginative extrapolations) to make Knight more of a modern progressive figure than he actually was (see, e.g., here and here). As for the question of secession itself, in part two of her three part review, professor Victoria Bynum (author of another book on Jones County) writes:

The old tale that Newt Knight and his band of renegades drew up a Constitution during the Civil War that declared Jones County, Mississippi, to have seceded from the Confederacy has been a favorite of journalists, folklorists, and even a few historians, since the late nineteenth century. Until historians finally shattered this myth, its effect was to paint the men of the Knight Company as hyper-secessionists rather than Unionists; i.e. as good old Southern white boys on a tear against any and all authority—rebels against the Rebellion, if you will.

Stauffer’s defense is, in my opinion, weak:

From Newton Knight’s perspective, neither he nor his fellow Unionists seceded from the Union, which means they were never part of the Confederacy. Knight insisted that since Jones County had voted against secession, it ‘never seceded from the Union into the Confederacy.’

But from the perspective of the Confederacy, Knight and his fellow Unionists did secede. Confederate officers wrote that Jones County was in ‘rebellion’ against the Confederacy, and they referred to Knight and his men as ‘traitors.’ These were the same terms Republicans used to describe Confederates.

It simply doesn’t work that way. Whatever irregularities existed with Jones County’s delegate to the Mississippi secession convention (the book alleges that he switched his position and voted for secession, even though the county had voted overwhelmingly against it), the convention voted to secede and the state as a whole was along for the ride. As was Virginia, of course, except for the counties west of the Alleghenies that stood up, said “bullshit to this,” and created, eventually, the state of West Virginia. Statewide votes are binding on the entire state. Individual disaffected voters don’t get to ignore results they don’t like.

Aside from the whole secession issue, The State of Jones has some other flaws that keep it from being easily recommended. For one thing, it’s focus shifts without any good reason from the more personal story of Knight and his family to broad depictions of several major engagements during the war (one of which, Bynum argues, Knight wasn’t present for). Those get tedious, mostly because they drive home the same point each time – war is hell, the Confederate foot soldier’s life was one of near constant starvation and disease, and it’s easy to see why anyone would want to escape it. Once we’ve gotten that point, do we really need it made over and over again?

Another problem with the book is, as noted above, its use of speculation and conjecture to fill in the blanks of Knight’s life and the lives of those around him. To be completely fair, Jenkins and Stauffer don’t hide it when they do it. To the contrary, many times they discuss a particular event, then transition into something along the lines of “we don’t know what Knight thought about this, but it might have been . . ..” Nonetheless, it’s frustrating to have the actual history whither down such dead ends.

I’m glad I read The State of Jones, if only because I knew nothing about this particular part of the Civil War before. But, after reading it and much of the discussion about it around the Web, I wouldn’t recommend it. There are other, more scholarly (if drier, perhaps), accounts out there. But The State of Jones is the one most likely to be encountered by the general public. That’s OK, if it serves as a jumping off point, rather than a comprehensive education.

The Details
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The State of Jones: The Small Southern County That Seceded From the Confederacy
By Sally Jenkins and John Stauffer
Published 2009

Time Is Money (and So Much More)

One of the crueler ironies of the current criminal justice system is the disparate way it treats people being released from prison.

If you’re guilty and coming to the end of a full sentence, the system is designed to help ease your transition back into the real world. There’s counseling, an emphasis on making plans for life outside of prison, and a (overburdened and underfunded) support system waiting upon release to make sure a person doesn’t fall back into bad habits. At least it’s supposed to work that way.

Not so if you’re actually innocent of whatever sent you to prison in the first place. The wrongfully convicted, who can lose years of their lives in a cage waiting for the justice system to get things right, aren’t necessarily given much help at all.

Consider what happened to Robert Dewey, who was locked up by the state of Colorado for a murder he didn’t commit. Nearly 18 years later, DNA not only cleared Dewey but linked the murder to someone else:

After years of work by his court-appointed lawyer, Danyel Joffe, the Innocence Project came on board in 2007 and paid for tests that showed no DNA links between Mr. Dewey and the crime scene. His conviction was reversed, and he was released last April. He left with an apology and a handshake from prosecutors in Mesa County, he said, but little else.

Colorado, like nearly half the states, doesn’t have any scheme for compensating people who have been wrongly imprisoned, although legislation providing for $70,000 per year in prison is working its way through the state legislature.

Dewey’s case is a particularly good example of this problem because DNA exonerations tend to take place in cases, like murders and rapes, where defendants are sentenced to lengthy terms, including life, which makes any attempt at rehabilitation unlikely:

Because Mr. Dewey had been sentenced to life, he said, he never touched a computer or took any vocational classes while he was in prison. He came out awe-struck by a world that had gone online and turned digital. The first time he walked into a Walmart, he said, he was so overwhelmed by its colors and scale that he had to run outside to smoke a cigarette.

I have to admit, I’m regularly overwhelmed at Walmart, but not because of the colors.

Dewey’s case is also a good example of the poor medical care that inmates sometimes receive while in prison. He’s currently unable to work because of a back injury that was aggravated while in prison. All in all, this seems like a correct assessment:

’God bless him, but the system has created him the way he is,’ said Stephen Laiche, one of Mr. Dewey’s lawyers in his 1996 trial. Mr. Laiche is now working to seal Mr. Dewey’s records from the murder case. ‘Are we surprised that he can’t get a job? Because we wrongfully convicted him, he couldn’t work for 20 years.’

Society owes a duty to anyone it locks in a cage to try and help them move back into the outside world. Not out of any kind of bleeding heart charity, but just because it’s better for them and us if they become productive, law-abiding citizens. That duty is doubly critical to those whom we had no reason to lock away in the first place. Seventy grand, or an even larger amount, isn’t much for a years of a man’s life disappeared, but it’s the least we can do.

There Are Things Worse Than Mercy

Clemency - when a governor or the president either lessens a person’s sentence or overturns his conviction - isn’t something that happens very often. Many words have been written on Obama’s stingy record when it comes to clemency, but the fact is he’s not that much worse than his predecessors. Sadly, politicians are just not that enthused to use political capital to release someone from prison who might, when it’s all said and done, go out and do something awful. One of those is all it takes to destroy a political career. Weighed against that, the reward for doing the right thing just isn’t that great.

Which is a long winded way of saying, when the governor calls and tries to lessen your penalogical burden, you say “yes!” But death, as they say, is different and sometimes capital punishment makes people do strange things.

Consider the case of Gary Haugen (via), convicted of murder in Oregon in 2007 (committed in prison while already serving life for another murder). Haugen is what they call in the capital punishment biz a “volunteer,” in that he wants to die. Or, at least, he’s waived his remaining appeals and collateral challenges to his conviction in order to bypass the years that might pass before he’s executed. If you’re the state of Oregon, so far so good, right?

Enter Oregon Governor John Kitzhaber. Kitzhaber is a death penalty opponent and he utilized his executive authority to offer Haugen an “unconditional reprieve,” after a fashion. It’s actually a reprieve that will expire when Kitzhaber leaves office and is part of a blanket decision on his part not to carry out any death sentences during his term because of problems with the death penalty. So it’s not much of a reprieve, and certainly not a commutation to a life sentence or a pardon.

Regardless, here’s the catch with Kitzhaber’s limited attempt at beneficence – Haugen doesn’t want it. Now the Oregon Supreme Court is set to decided whether an inmate can refuse an act of clemency handed down by the governor.

At first blush I would have never thought that clemency was something someone could refuse. It’s an act of executive grace, after all, which can neither be demanded* nor reviewed, so how could the receiving party turn it down? However, that’s not what a lower court decided, identifying a 1833 Supreme Court decision that allowed a prisoner to refuse a pardon. The Governor counters that newer cases undermine that idea and that:

’No state court appears to have required that, as a general matter, an unconditional grant of clemency be accepted to be valid,’ [the Oregon Solicitor General] wrote. ‘Instead, the case law surrounding the clemency power reaffirmed that the power was expansive.’

Haugen’s argument is based on both clemency law as well as federal notions of due process and cruel and unusual punishment. This passage from the argument summary section of his brief seems to sum up the core of his position:

Mercy cannot be forced upon someone any more than a gift can be, and what one person considers to be a benefit, another might consider to be an injury. A purported act of benevolence that can be forced upon someone who does not want it is a contradiction not only in terms, but of concepts. Here, Mr. Haugen considers Governor Kitzhaber’s action, as well-intentioned as it might be, to be profoundly dehumanizing and cruel. It makes him an unwilling pawn in the Governor’s desire to ‘allow’ Oregonians to engage in a debate over the death penalty, even though nothing has impeded them from engaging in that debate ever since they overwhelmingly voted to establish the death penalty nearly 30 years ago. Because Governor Kitzhaber obviously cannot determine whether his successor as Governor will continue the moratorium he has imposed, Mr. Haugen could be put to death by lethal injection as soon as Governor Kitzhaber leaves office. . . . The ostensible reprieve therefore makes plaintiff live for up to seven years under an awful pall of uncertainty regarding whether, and when he will be put to death.

That is not something Mr. Haugen wants, and not something he sought.

A third party involved in the case is the ACLU, which filed an amicus brief from its office between a rock and a hard place. On the one hand, the group is furiously anti-capital punishment. On the other, it generally takes positions that maximize an individual’s control over his own life and even the right to end it (as Haugen explains in his brief, he doesn’t want to die – the state wants to kill him – he just doesn’t want to unduly prolong the process). In the end, it comes down on the side of Kitzhaber, arguing that his clemency authority extends to temporary reprieves such as this one used to “promote the public welfare” by, among other things, forcing a discussion on the nature of Oregon’s death penalty.

While I understand the structural basis for the ACLU’s argument, as well as Kitzhaber’s, I’m not sure they should prevail in this case. I’m particularly troubled by the temporary nature of the reprieve. It would be one thing if Kitzhaber simply commuted Haugen’s sentence to life, as George Ryan did in Illinois while he was governor. But the uncertainty of this reprieve, which may only prolong the inevitable for Haugen, adds an extra layer of cruelty to the whole situation. Haugen may have earned his punishment, but nobody should be made a pawn in a political game in which they have no real input.

If the death penalty in Oregon is broken, then commute those currently sentenced to death to life in prison and fix the system. Or, better yet, join the rest of the civilized world and scrap the barbaric practice altogether. Stand up and put your money, and your political capital, where your mouth is, Governor. Stop playing games.

* Obviously, you can ask the governor or president for a pardon or commutation. What I mean is that, unlike a court action, there’s no combination of factors that, if proven, will lead to success. The final decision lies completely within the executive’s unreviewable discretion.

Friday Review: The End of Eternity

I am generally loath to put “spoiler” warnings on things, particularly when discussing a book that was first published while my parents were in college. Regardless, if you’ve not read The End of Eternity, I urge you to do two things. First, go get it and read it, as it’s really quite good. Second, get the hell out of here before I ruin it for you!

Now, with that said . .

I’m not a huge fan of time travel in science fiction. The problem of paradoxes and alternate realities and such things makes my head hurt and, more often than not, squelches any real sense of drama. Maybe that’s why the stuff that works for me when it comes to time travel is the light (Dr. Who, in all its timey-wimey goodness) and comic (Futurama, in which the main character does, in fact, become his own grandfather).

The End of Eternity manages to sidestep those issues, thankfully, perhaps because it’s so submersed in time and travel through it, rather than the “real” world. Eternity itself is a collection of technicians, Eternals, who exist outside of time, traveling “upwhen” and “downwhen” with ease and impunity well into the future. Eternity exists outside of regular time and exerts its influence on “real” time when the Eternals make subtle changes to reality in order to produce a more peaceful, less chaotic human existence.

What Asimov does with the Eternals is rather clever. Instead of the main character, Harlan, being a rebel out to topple a controlling, autocratic system, he comes across as someone who really has no qualms with the system. In fact, there is no real dissent among the Eternals about the fundamental nature of what they do.  They are humble technocrats, nothing more.  That changes when Eternity messes with Harlan’s personal life, in the form of a woman plucked out of time named Noys, with whom he falls in love. To get her back, he’s willing to do anything, including destroy Eternity itself.

One painful thing about some of the old Asimov books is that they are very light on meaningful women as characters. Though he provides an explanation of why there are no women in Eternity, it’s not very satisfying and steeped in the misogynistic attitudes in place when the book was written. Thus, Noys is the only woman in the book. To Asimov’s credit, she becomes quite more than the bland love interest she appears in the beginning.

Ahead there be spoilers . . .

In fact, it is Noys who turns the whole thing around for a brilliant, stomach punching ending. We tend to read sci-fi set in the future involving Earth as being our future. It’s a reasonable assumption to make. What we learn at the end of The End of Eternity, as Harlan and Noys travel back to the 1930s, is that assumption in this case wasn’t true. As it turns out, Noys belongs to a group of even more sophisticated time travelers who don’t agree with the way the Eternals mess with the past to make it less chaotic.  Chaos drives innovation and the human desire to reach the stars (yes, Babylon 5 fans, this dichotomy sounds familiar).  She convinces Harlan not to make the change he was sent back to make. She then makes her own adjustment, sending a letter to a man in Italy encouraging him to “begin experimenting with the neutronic bombardment of uranium.”

That’s right – the entirety of The End of Eternity takes place involving a future Earth that is not our own. Harlan’s act, or decision not to act, along with Noys’s letter (sent to Enrico Fermi, presumably) gives birth to our own reality, complete with the atomic bomb, global warming, and (the big prize for Noys and, one suspects, Asimov) space flight. It’s a well earned twist that lands like a punch in the gut.

Asimov has always been one of my favorite authors, but I was ignorant of The End of Eternity until it was rereleased a couple of years ago. Is it “his single greatest novel”? I’m not sure, but it’s certainly one of the greatest. A must read if you think of yourself as a sci-fi fan.

The Details
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The End of Eternity
By Isaac Asimov
Published 1955

Every Ubiquitous Tool Starts Somewhere

Anybody else remember Bank Street Writer? It was the first word processor I ever used, way back in elementary school on my Commodore 64. It had a few menus and was kind of WYSIWYG, but only in the most generous sense. Nonetheless, I knew enough about typewriters from playing around with my grandfather’s to realize that this was a step in the right direction.

At least Bank Street Writer fit on the desk in my room, though. That was not always the case:

Deighton stood outside his Georgian terrace home and watched as workers removed a window so that a 200-pound unit could be hoisted inside with a crane. The machine was IBM’s MTST (Magnetic Tape Selectric Typewriter), sold in the European market as the MT72. ‘Standing in the leafy square in which I lived, watching all this activity, I had a moment of doubt,’ the author, now 84, told me in a recent email. ‘I was beginning to think that I had chosen a rather unusual way to write books.’

Len Deighton was already a best-selling author in 1968 when an IBM tech, who repaired his typewriters, suggested he try their new contraption. It was just barely a “word processor” – when the technology was being developed it was labeled Textverarbeitung (“text processing”) by a German IBM executive – but it was pretty impressive, recording keystrokes on magnetic tape and replaying them at a rate of 150 words per minute.*

Not surprisingly, the first to master the MTST was Deighton’s assistant, Ellenor Handley:

In an email, Handley, now 73 and retired, detailed her role in Deighton’s writing process. ‘When I started Len was using an IBM Golfball machine to type his drafts,’ she wrote. ‘He would then hand-write changes on the hard copy which I would then update as pages or chapters as necessary by retyping—time-consuming perhaps but I quite liked it, as I felt a real part of the process and grew with the book.’

And, thus, the first novel written on a word processor, Bomber, about a World War II bombing raid, was born (the technological equal to Twain’s Life on the Mississippi, the first book submitted in typewritten form).

What’s amazing is not just how far the actual technology has come since the MTST was hauled up through Deighton’s window, but how ubiquitous word processing is. I write for a living and for pleasure, so I spend more time in Word than just about any other program (Word Perfect is a tool of the devil!). But even if you don’t write for a living, you use it all the time. The conventions of word processing software have even seeped out into other applications, such that we don’t give much thought any more to changing a font or running a spell check on an Email.

In fact, it’s hard to imagine what the next leap in technology could be that would sweep the word processor from the scene. Maybe some kind of neural link where the writer could simply download the contents of his mind to the page? No typing, no shuffling the mouse about. I might be down to try that, so long as I don’t have to take out a part of my house to fit it in.

* Interesting “small world” note: Deighton later wrote another book about World War II, specifically the Battle of Britain, called Fighter. Said German executive had fought in that battle, for the Luftwaffe, of course.

The Perils of Owning Public Art

A few years ago, a mural by British guerrilla artist Banksy popped up in the ruins of the Packard plant near Detroit:

The mural is a 7-by-8-foot stencil painting on a cinder-block wall that pictures a forlorn boy with a can of red paint next to the words ‘I remember when all this was trees.’

Recognizing the value, a local art gallery swooped in and relocated the ruined wall and the mural. The ownership status of the plant was unclear, so presumably they thought it was fair game. The value of a free-range Banksy, as it happened, drew the actual owner of the property out of the woodwork to claim it, as well. As a result, IIRC, he wound up getting socked with a huge unpaid property tax bill. Talk about karma.

Questions of ownership and where works like that wind up are in the news again, thanks to Banksy once again, this time in the UK. The neighborhood in question, Haringey, was one the site of some of the most intense London austerity riots in 2011:

The work — called ‘Slave Labour’ and depicting a downtrodden, barefoot boy making Union Jacks on a sewing machine — had become a point of pride in Haringey . . .. Stenciled onto the wall of the everything-costs-a-pound Poundland store on Whymark Avenue, it drew visitors from across London and abroad; so many people asked for directions that the local subway station erected a special ‘This way to our Banksy’ sign.

As with the Packard mural, it was not long for its native habitat:

’It had been ripped out with no explanation, along with quite a substantial chunk of the wall,’ said Alan Strickland, a member of the local council, describing the bizarre scene that greeted passers-by the other weekend. ‘All that was left was this hole.’

The mystery deepened when the mural reappeared at an auction in Miami. When a stink was raised it was quickly withdrawn, but not before being valued at more than half-a-million dollars. Now the question is what to do with it next.

To be sure, from a legal standpoint, there is no doubt that Poundland, or rather the company that owns the building that they lease, owns the mural. It was put up on their wall, after all, without permission. They own it just like they own a gang sign thrown up in spray paint. Nevertheless, it’s being coy about just what its intentions might be:

‘If it wasn’t them, then somebody else did it, but my clients have not reported any theft to the police,’ said Matthew Dillon, a lawyer for the company.

He acknowledged in an earlier interview that those clients are now in a fix. ‘If they deny removing the mural they will become embroiled in an international criminal investigation,’ he told The Financial Times, ‘and if they admit to consenting to it, then they will become the target of abuse.’ He added, ‘The advice to my client has been to say nothing.’

Generally, if an attorney advises his client to say nothing, he doesn’t say anything, either (aside from “no comment”). The “damned if we do, damned if we don’t” defense is saying something, although it’s unclear what.

Assuming that the company took the mural out and decided to sell it off – after all, it’s in business to make money – is there anything wrong with it? Anything that should subject it to abuse? Not really.

Legally, there’s no question – it’s their wall, do with it what they will. I also have a hard time locating any ethical principle that would require the company to maintain an impromptu piece of art that it neither commissioned nor consented to being put up on its property. Art is subjective and whether you think Banksy (or any particular work of his) is brilliant or not is irrelevant to the question of whether a private entity can be forced to display it.

Would it have been cool for the company to embrace the value of having a piece of unexpected art pop up in their neighborhood and leave it in place? Sure. Ultimately, the company’s greatest sin wasn’t removing the mural, but trying to profit from it (if, in fact, it did). It’s one thing to remove art you don’t like from public view. It’s another to get rid of it in order to make a quick buck. It may be good business sense to take advantage of a windfall, but it’s kind of a dick move.

Note: I tried to find good, public domain or creative commons images of the two murals in this piece, but failed. For a good picture of the Detroit mural, see here. For a good picture of the Haringey mural, see here.