On Prosecuting the Torturers

In the wake of the Senate report on torture by the CIA (and its contractors - leave it to we Americans to privatize our atrocities), there hasn't been a whole lot of ink spilled on what should be done to those who engaged in illegal behavior.   Generally that means prosecution, but should it?  There are at least a couple of arguments that it shouldn't, even if the folks are guilty as sin.

The first, and more persuasive argument, was set out by Anthony Romero, head of the ACLU* in the New York Times the day the report was released.  Although the ACLU has been in the forefront of trying to get all the details of our torture programs out in the open, he argues against prosecuting those involved (up to and including Bush, Cheney, and Rumsfeld).  It's not a matter of giving up - it's a more clever gambit:

with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.

* * *

Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.

Problem is, I don't think pardons really work that way.  For one thing, I don't think one needs to formally "accept" a pardon for it to become effective, much less do so with conditions attached.  For another, I don't think accepting a pardon would concede that the conduct at issue was a crime.  

In fact, just the opposite could be true.  I might take a pardon precisely because I think my conduct wasn't criminal, in order to head off politically-motivated prosecutions in the future.  It would be no different than the West Memphis Three agreeing to enter an Alford plea to a lesser charge in order to be released from prison (and death row, for one guy), even though they maintain they're innocent.

So, while Romero gets some credit for creative thinking, I don't think handing out pardons would get him where he wants to go.

Eric Posner, on the other hand (writing over at Slate), has a much more disturbing take.  He argues that there should be no prosecutions because, well, in essence, politicians are untouchable:

But Obama’s best argument for letting matters rest is the principle against criminalizing politics. This is the idea that you don’t try to gain political advantage by prosecuting political opponents—as governments around the world do when authoritarian leaders seek to subvert democratic institutions. Of course, if a Republican senator takes bribes or murders his valet, the government should prosecute him. But those cases involve criminal activity that is unrelated to the public interest. When the president takes actions that he sincerely believes advance national security, and officials throughout the government participate for the same reason, then an effort to punish the behavior—unavoidably, a massive effort that could result in trials of hundreds of people—poses a real risk to democratic governance.

Obama’s problem is that if he can prosecute Republican officeholders for authorizing torture, then the next Republican president can prosecute Obama and his subordinates for the many questionable legal actions of the Obama administration—say, the drone strike that killed Anwar al-Awlaki and three other American citizens.

The full impact of Posner's reasoning is that no politician could ever be held accountable for a crime he or she commits, aside from something like garden-variety murder.  Crimes committed in the service of a political office can be committed with impunity, because of the danger of political justice.  I certainly agree that a series of bilateral criminal investigations done only for political motives would be bad for the country (although, honestly, how much worse?).  But that doesn't mean winning an election means immunity from wrongdoing just to avoid that fate.  Surely there's a line - doesn't sanctioning and carrying out a regime of torture that includes acts previously prosecuted as war crimes by this very country cross it?

One thing that both Romero and Posner say, and that I agree with completely, is that no prosecutions will actually happen. it's naive to think otherwise.  That doesn't mean we have to shrug and accept it or, much worse, justify it.

* Full disclosure - I am a card carrying member.

Down the Memory Hole

In 1998, real estate belonging to Mario Costeja Lopez, in Spain, was seized by local authorities and auctioned off to pay debts he owed.  Notice of the auction went out in the local newspaper, and later on its web site.

Skip to this past summer, when a lawsuit filed by Lopez came to an end at the European Court of Justice (sort of a Supreme Court for Europe).  Staggeringly, the court partly agreed with Lopez's requests that the newspaper remove the notice from its archive and Google remove links to it from its search results.  The court didn't make the paper take the notice down, but did order Google to kill the links.  This is what's know as the "right to be forgotten."

As you might expect, Lopez's triumph has led to fairly disparate opinions on either side of the Atlantic:

Q: But this ruling goes completely against freedom of information - that anything that's public should be recorded and kept.

A: That's certainly how lots of American commentators have seen it. There's a definite cultural split in peoples' attitudes to this ruling. Journalism professor and commentator Jeff Jarvis (of City University, New York) called it 'a blow against free speech' - but was then chided by Gerd Leonhard, from Basel in Switzerland: ''Everything that happens must be known' - is that what you are proposing? I think EU decision on Google is a suitable first step.'

It's worth noting here that the European conception of what "privacy" means is fundamentally different than it is in the United States.  We tend to think of privacy as dealing with limits on the government and generally enforcing what Louis Brandeis called the "right to be let alone."  Europeans, on the other hand, put much more importance on being able to conceal parts of your own past from others - to emphasize being able to control your own personal narrative (so to speak).

The problem with that, of course, is that you're most likely to want to keep from view the very kind of information you want others not to know.  At the extreme, you probably don't want people to know about a prior conviction for a crime or maybe even a prior marriage.  More mundane worries may include things like poor job performance, embarrassing Facebook status/pictures, or, in cases like Lopez, financial insolvency.  All of that, of course, may be relevant information to others.

Regardless of the merits of either approach, the right to be forgotten is leading to some absurd requests.  Like the one recently received by The Washington Post (via) from a pianist named Dejan Lazic.

Lazic, from Croatia, gave a concert in Washington in 2010 at which the Post's music critic was not particularly impressed.  It referred to a prior work of Lazic's as "attention-getting, large scale and a little empty" and concluded that his recital "was unfortunately more of the same."  It wasn't a pan - Lazic was described as "sensitive" and "profoundly gifted" - but it was, at times, pretty barbed (in Lazic's hands a "scherzo became cartoon-like").

So, it's a less than glowing review.  But that's the price you pay for being an artist, right?  People get to say whether they like your stuff or not, or, more broadly, whether you're "good" and you don't get a lot of say on the matter.  Writers, I know, are encouraged to never engage with critics - it's a battle you just can't win.  Unless the review gets something factually wrong, you shrug it off and move on.

Not Lazic.  Armed with the "right to be forgotten," he has asked the Post to take the review down.  As he explains:

'To wish for such an article to be removed from the internet has absolutely nothing to do with censorship or with closing down our access to information,' Lazic explained in a follow-up e-mail to The Post. Instead, he argued, it has to do with control of one’s personal image — control of, as he puts it, 'the truth.'

The Post is not backing down, partly because even the right recognized in Europe doesn't extend to the actual newspaper stories, only the links.  But it also recognizes that there are broader issues, more meta ones, at stake.  Like which version of the "truth" gets to be in the permanent record:

Whose truth is right: the composer’s or the critic’s? And more critically, who gets to decide?

It’s a question that goes far beyond law or ethics, frankly — it’s also baldly metaphysical, a struggle with the very concept of reality and its determinants. Lazic (and to some extent, the European court) seem to believe that the individual has the power to determine what is true about himself, as mediated by the search engines that process his complaints.

Growing up with the First Amendment, I would say that the decision about where the truth lies belongs to neither the performer or the critic, but to everyone else.  I do think I have a right to know that Lazic is, in the opinion of some, a bombastic player who overperforms.  Heck, I may like such things!  Why should I only have the word of the performer to go on before I lay out cash for a ticket or a CD?  That would reduce us to a world of very special people who are brilliant at what they do.  Even as a writer, I wouldn't want that.

There is a considerable irony in all this.  Were it not for his successful court case, I would have never heard of Mario Costeja Lopez or his financial problems.  The same is true for Dejan Lazic and his penchant for pianistic bombast.  More perfect examples of the Streisand Effect would be hard to find.  Which gives me some hope that the right to be forgotten will, someday, make its own way down the memory hole.

How to Get Away With Anything

The breakout hit of the new TV season, to the extent there is such a thing anymore, is How To Get Away With Murder, the latest product of the Shonda Rhimes ratings factory.  It's about a law prof who's also a practicing defense attorney (not completely unheard of), who uses four students every semester as part of her defense team (very much unheard of).  We've already learned that, in addition to helping win murder cases, they're deeply involved in one.  It's fun, in a silly, don't-think-too-much-about-it kind of way.

However, as a friend of mine pointed out on Facebook the night of the premiere, it is deeply deeply unrealistic.  As he noted, there's a handful of glaring ethical failures in just the first episode, so anybody who thought the show's title held the promise of accurate advice, think again.  Come to think of it, if your legal knowledge is gleaned solely from primetime TV, remember the old MST3K mantra: it's only just a show, you should really just relax.

Having said all that, last week's episode entered my playground - the appellate court - and completely shit all over it.  Trust me, neither the Pennsylvania Supreme Court nor any other appeals court is ever going have parties calling witnesses, much less engaging in hyperbolic cross examinations in their courtroom.  Oh, and the guy whose fate their arguing over, the defendant?  Nowhere near the place.  Prisoners don't get transported for oral arguments.  It would have been easy enough to get all this right (move the hearing to a trial court), so one wonders why they don't.

Now . . . where was I . . .

Primary among the ethical slips we've seen so far is how some of the students lie about who they are in schemes to get information to help win their client's freedom.  This might seem bold, or even clever, but it's something you simply cannot do as a defense lawyer.  That's a good thing, but it results in a odd imbalance in the criminal justice systems.

You see, cops can and will lie to you.  This recent Christian Science Monitor article sums up the situation well:

Bluffing is a common – and legal – tool in police interrogation rooms, and the art of artifice in obtaining confessions is a standard part of police training. The parameters for what police can lie about are broad, and lies can range from claiming to have evidence that does not exist to fibbing that a witness was at the scene.

Still, per US Supreme Court rulings, confessions must also be 'voluntary,' introducing a possible point of contention between an officer’s right to lie to a suspect and his or her obligation to serve justice.

'The question is, at what point does the amount of lying make the confession involuntary?' Professor Shanks says. 'There’s just no bright line on it.'

Defense attorneys, and those employed by them (like, say, young eager law students) don't have that luxury.  Rule 4 of the WV Rules of Professional Conduct (which are similar enough to others in the country to serve as an example), is labelled "Transactions With Persons Other Than Clients."  It says:

Rule 4.1.  Truthfulness in statements to others.
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

So, where cops can lie about who they are and what information they have, defense attorneys and their investigators can't.  It's a simple as that.

Which leads to cops being involved with all kinds of shenanigans that would get a defense lawyer disbarred, if not locked up.  Like this latest outrage (via) in the War on (Some People's) Drugs:

The Justice Department is claiming, in a little-noticed court filing, that a federal agent had the right to impersonate a young woman online by creating a Facebook page in her name without her knowledge. Government lawyers also are defending the agent’s right to scour the woman’s seized cell phone and to post photographs — including racy pictures of her and even one of her young son and niece — to the phony social media account, which the agent was using to communicate with suspected criminals.

The woman had been arrested and ultimately pleaded guilty to a minor drug charge, for which she received probation.  Her phone was seized as part of her arrest.  She was never told about the fake profile using her information (she learned about it from a friend).

Why would the DEA think they could do such a thing?

The experts also agreed that the case raises novel legal and ethical questions. There is a long tradition of deceptive practices by police that are legal, they noted. For example, officers assume a false identity to go undercover. 'What’s different here,' said Ryan Calo, a professor at the University of Washington School of Law, is that the agent assumed the identity of a real person without her explicit consent.

'The technologies we have now are enabling all sorts of new uses,' said Neil Richards, a professor at the Washington University School of Law. 'There are a whole bunch of new things that are possible, and we don’t have rules for them yet.'

I'd beg to differ only in that the rules are already there and the cops (which includes the DEA) knows they don't need to follow them.  The slow destruction of the Fourth Amendment, combined with the desire to let cops do absolutely anything in the name of the War on (Some People's) Drugs leads precisely to this kind of behavior.

So, while ABC may want to show us how to get away with murder, the way to get away with most anything else is pretty clear - be a cop going after drugs.

Eric Cartman Pens an Op-Ed

Since the killing of Michael Brown by a police officer in Ferguson, Missouri a couple of weeks ago, a lot of words have been written.  I can't claim to have read them all, but I can say without hesitation that this piece in the Washington Post has to be one of the most outrageous.  Strangely, it has nothing to do with the specific facts of the Brown shooting, but it says an awful lot about how the police view the world around them and the people who live there.

Sunil Dutta is now a professor of "homeland security" at a for-profit university, but before that he spent 17 years as an LAPD officer.  Last week, Dutta wrote a column entitled:

I’m a cop. If you don’t want to get hurt, don’t challenge me.

Provocative, yes?  However, if you know anything about journalism you know that, quite often, the person who writes the article doesn't write the headline and the headline is crafted to be sensational and generate page views.  Hell, some places like Slate are so bad about it that the percentage of time the headline matches the article contents probably hovers around the Mendoza Line.  So, maybe, give Dutta the benefit of the doubt and assume he has a more nuanced point to make.

Not so much:

Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?

In other words:

To be fair, Dutta "side[s] with the ACLU" and argues that all officers should wear body cameras and all police cars should have a camera, too (although, as Radley Balko points out, those are hardly a panacea).  And he writes this:

And you don’t have to submit to an illegal stop or search. You can refuse consent to search your car or home if there’s no warrant (though a pat-down is still allowed if there is cause for suspicion). Always ask the officer whether you are under detention or are free to leave. Unless the officer has a legal basis to stop and search you, he or she must let you go. Finally, cops are legally prohibited from using excessive force: The moment a suspect submits and stops resisting, the officers must cease use of force.

Emphasis very much mine.  This, while nice in theory, directly contradicts the "respect my authoritah" mantra he relies on earlier.  If a cop says he's going to stop me and I don't think he has the right to do so, what do you think will happen if I don't "submit" to it?  We're talking about a relationship with a serious imbalance of power between the two people.  The officer has the gun, after all, and, as we've seen, generous legal cover should he or she use it.  I, on the other hand, am likely to at least wind up arrested for something vague like "disorderly conduct," of not worse.

Ken at Popehat is right.  Dutta's attitude, and the fact that we generally accept it without much objection, is "servile and grotesque."  If anything good comes out of this whole mess, maybe it will be that society starts to rethink the hands off attitude we have toward the way the police do their job.

I Was Going to Say That

So, when the Supreme Court announced the decision in the Hobby Lobby case, I was immediately seized by the need to write something satirical about it.  I got about this far, before I ran out of spunk (as often happens with satire):

SCENE: A boardroom on a bright summer morning.  Sunlight streams through an animatronic stained glass window depicting Eric Idle singing the "Money" song.

My closely held brethren in profit, welcome to this, the annual feast day of the holy Hobby Lobby.  Before I go further, let me thank the sisters for the wonderful coffee and baked goods upon which we feast this day.  Although, please, ladies, no more danishes?  The Danes, of course, are godless communists and we have no room for that here at GloboCorp.

And sisters, if you wish to stay while we speak, please sit down in the back of the room and be quiet?  Blessed are thou.

It would have continued in that vein, feasting the holy Hobby Lobby as the paragon of how to make even more money by appealing to the name of God.  As I had written up for insertion later:

Muhammad, my brothers, may have moved the mountain, but he did not increase the bottom line.

But, as I said, I ran out of spunk and it sat there for a bit.  Then, along comes Kathryn Pogin, writing at the New York Times philosophy blog (it's a thing) and she, while not aiming for the snark I was going for, hit what I think are all the high points of why the whole Hobby Lobby thing is such a miss.

To begin with, science and the actual world has little to do with Hobby Lobby's objections:

Some corporations that have objected to the contraceptive requirements of the Affordable Care Act, like Hobby Lobby, claim that they do not wish to discriminate against women by denying them access to contraceptives generally, and that their opposition is merely to abortion. However, their understanding of which medications act as abortifacients rests on an outdated understanding of medical science and is at odds with the facts of the matter. Use of these contraceptive methods is not tantamount to abortion, and moreover, providing women with access to safe, reliable contraceptives for free drastically reduces the actual abortion rate.

Nor does it matter that Hobby Lobby's concern about particular contraceptives is of recent and dubious vintage:

Hobby Lobby offered coverage for some of the contraceptives it now claims its religious faith forbids it to have any association with, until shortly after the Becket Fund for Religious Freedom asked it if it would be interested in filing suit. The company continues to profit from investments in the manufacturers of the 'objectionable' contraceptives through the 401(k) plan it offers its employees. Recently, Hobby Lobby has faced legal trouble for false advertising. It has built a fortune, in large part, by selling goods manufactured in China, infamous for its poor labor conditions and related human rights violations. These are the practices of a corporation that will emphasize the Christian faith of its owners when convenient and profitable, but set that faith aside when it would be costly to do otherwise.

What Pogin overlooks, or ignores (it's a philosophy blog, after all, not a legal one), is that none of those considerations were relevant to the Supreme Court.  Neither the majority or dissent were willing to take on the substance of the company's stated beliefs and how they interacted with the real world.  This, quite correctly, is a feature not a bug - the government, including the courts, shouldn't be in the business of deciding the truthfulness or sincerity of religious or similar beliefs.  But therein lies the rub - because those beliefs are off limit from official inspection, neither can they be a basis for a get-out-of-obeying-any-regulation-I-don't-like card.  The Supreme Court got it right in Smith.  Unfortunately, Congress saddled us with RFRA (which was the controlling law - not the First Amendment), another nasty gift of the Clinton era that keeps on giving.

Having said all that, Pogin also gets exactly right the actual impact of the decision on women and why the "it doesn't ban anything" argument rings hollow:

This is economic coercion. Opponents to the contraceptive mandate have insisted that women remain free to purchase whatever health care services they choose, but this is woefully insensitive to the reality that low-income women and families face. For these women, there is a very large difference between what is available to them for purchase in principle and in effect. It is easy for those who do not regularly face desperate decisions due to financial insecurity or medical complexities to forget the difference. An intrauterine device, for example, can cost a low-income full-time worker more than a month’s wages. For some women, this is both the safest and most effective medical option, yet hopelessly unaffordable.

Pogin has another interesting angle, too, that being that Hobby Lobby isn't even a good Christian, but that's a hunt in which I have absolutely no dog.

At the end of the day, the question is whether Hobby Lobby is as limited in its impact as the Court seems to think it will be.  I, honestly, can't see a way to distinguish the exemption approved there from the ones the Court seemed to clearly think were different, but I sometimes lack imagination.

I guess we'll have to wait and see after GloboCorp finds Jesus, huh?

Some Thoughts on Town of Greece

Last week the Supreme Court decided the Town of Greece case, in which it blessed the appropriateness of regular sectarian prayer during city council meetings.  I'll not go over all the details here, but rather point folks to good writes ups here and here (via) that explain what the holding was and how the majority got there.  I do have a few additional thoughts, however.

Given that everybody on the Court accepts the continuing validity of the Marsh decision, which approved of an opening prayer in a state legislature, the majority didn't have far to go to reach the same conclusion here.  That was partly due to the plaintiffs themselves.  Per the majority, this was their goal in bringing suit:

They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to 'inclusive and ecumencial' prayers that referred only to a 'generic God' and would not associate the government with any one faith or belief.

In light of that litigation strategy, I think it was doomed from the start.  Reasonable compromise may be an effective political strategy (although see), but rarely a legal one.  Compared to what the plaintiffs were asking for, what the town of Greece was already doing wasn't all that different.  At most, it was a difference in degree, not in kind.  Hard to force a court to see the injustice in allowing the status quo to continue.

Having said that, I think Kagan does a good job of showing how the situation in town of Greece was really quite different from Marsh and provided a basis to come to a different conclusion.  Unlike Marsh where, by the prayer defenders' own argument, the prayers at issue were directed only at legislators (and where it was changed in response to a single objection from a Jewish legislator), the context of the town of Greece's prayers were as part of, and prelude to, proceedings in which citizens directly interact with their government.  As she put it in her introduction:

Yet our Constitution makes a commitment still more remarkable— that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.

Note, however, that in her paean to inclusiveness, Kagan skips over/ignores the atheists, agnostics, or other folks who simply aren't religious.  It's an effective reminded that, for all the various religious squabbles that happen in this country, we nonbelievers aren't even considered in most instances.  Kagan has beautifully written about the need for the government not indulge both country and western, but leaves out any mention of the techno jazz trip-hop folks.  And so it goes.

I would have joined Kagan's opinion.  Actually, I'd probably gone all liberal Thomas and write a separate opinion going back to the underlying law and calling it out for being wrong.  Having said that, I think the space between the majority and dissent in this case is pretty tight.  I also think the knock-on effects of the ruling are pretty obvious.  Already we've had the irreligious and minority religious folks chomping at the bit to be included, while at least one Christian in a position of authority has decided to exclude anybody he doesn't like.  This is what happens when we turn regular business meetings into places of worship.

One thing that I find odd about Marsh, and the majority opinion on which it was based, is that it rests heavily on the practice of the initial Congress in having opening prayers.  I understand the appeal of looking at what the Founding Fathers did, but they weren't great about following their own constitutional commands.  How else do you explain the Alien and Sedition Acts, which criminalized dissenting political views?  As Justice Brennan put it in a book, “the ink had barely dried on the First Amendment” when Congress passed those acts.  Those acts were so repugnant to a modern understanding of the First Amendment that the Supreme Court recognized that:

[a]lthough the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.

Politics happens and it has always happened.  Looking to the behavior of elected officials as a guide to our higher Constitutional principles is a fool's errand.

While it's important to note that the plaintiffs in Town of Greece weren't trying to stop the prayers, one of the plaintiffs was (so I've read) an atheist.  I sometimes see, particularly in Facebook discussions, Christians who wonder (sarcastically, I assume) why atheists get so "scared" about things like this when they don't really believe in God anyway.  Speaking only for myself, atheists aren't "scared" about the content of prayers themselves, but we are concerned about the power of the state being co-opted by religious groups.  We're angry that the First Amendment seems to mean so little in such situations.

And the harm suffered goes beyond mere hurt feelings:

the harm is that the legal relationship between a government and its citizens has been altered, so that minorities now stand in relation to government as minorities, rather than simply as Americans. Government prayer renders them separate members of the political community, regardless of how they feel subjectively. Justice Kagan is careful about this in her dissent. Every time she describes the harm, she says that citizens of Greece “become partly defined by their creed,” or that the town’s prayer 'alters a dissenting citizen’s relationship with her government,' or that the member of a minority faith 'becomes a different type of citizen ... she stands at a remove, based solely on her religion, from her fellow citizens and from her government.' Constitutional harm of this type is not about the subjective feelings of sensitive minorities, and it is not something that can be avoided by desensitizing them.

Kagan goes through several hypotheticals where a non-participant in the prayer then has to turn around and ask the governing body to take some action on their behalf.  There are reasons we'd never allow a trial to be begun with a prayer, lest any of the parties feel they were behind the theological 8-ball from the very beginning.  Why should a town council meeting be different?

At bottom, what we nonbelievers can't quite figure out is what the purpose of these prayers are.  Why start a business meeting with a plea to the almighty?  Here's what Kennedy says it's for:

As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society.

If that's the goal, then I think we can safely conclude that these kinds of prayers are empty exercises.

Which means, in the end, this might all be a bunch of sound and fury (with the requisite helping of idiots) signifying not an awful lot.  I hope so.

Avoid Woodbridge, Illinois (Or Pay the Price)

Let's just get right down to it.  If you are arrested in the Village of Woodbridge, Illinois, you will be billed for the pleasure.  You will be separated from $30, regardless of whether you are eventually convicted of the crime for which you were arrested.  There is no procedure in place to challenge the fee or have it reimbursed.

If you think that's outrageous, you're right.  What's even more outrageous is that the Seventh Circuit just blessed it (via).

Here's how the scheme works - if you are arrested for committing a crime in Woodbridge, you will be charged $30 when brought to the police station for booking.

That's it!  Doesn't matter if the cops arrested the wrong guy or lacked probable cause to make an arrest or were out to score vengeance against the guy who slept with his wife.  Guilt or innocence is irrelevant.  If you're booked by the Woodbridge police, you will be billed for the pleasure.

Jerry Markadonatos challenged this practice after he was arrested and then participated in a diversionary program that left him with the equivalent of a not-guilty verdict.  Seems like a due process slam dunk, right?  Generally, if the government is going to take your property, they've got to provide some procedure by which you can fight it.  The Woodbridge fee is a binary, no discretion rule - get arrested, pay $30.

Amazingly, for two of the judges on the Seventh Circuit panel, this was the program's saving grace.  For one of the things to consider in a due process challenge is the chance of an erroneous deprivation of property which, in the case of Woodbridge, the court concluded is "non-existent":

Under the scheme, every person who is arrested is charged the booking fee, regardless of whether they were arrested without probable cause. Thus, a Woodridge employee determining whether to charge the booking fee is presented with a binary choice: 'yes' the booking fee must be charged to a person who has been arrested and is being booked by the Village; or 'no' the booking fee must not be charged to a person who has not been arrested and is not being booked by the Village. This determination is made all the easier by the fact that the booking fee is collected only upon an individual’s arrest and booking. Thus, the Court cannot envision any situation in which one who has not been arrested is charged the booking fee. That is, it is only when one is arrested and booked that the collection of the fee occurs, thus making the potential for erroneous deprivation practically non-existent.

In other words, because the bureaucratic drone presented by a cop with a freshly arrested person has no authority to question the arrest, there's no risk of an erroneous deprivation of that person's property.

Yes, that's as loopy as it sounds, but it gets even worse:

Mr. Markadonatos was arrested and later appeared before a judge. Thus, if he believed that he was not or should not have actually been arrested, he had the opportunity to alert both the arresting officer and the judge hearing his case of that fact. While neither of these opportunities is formally provided for in the statute, they are more than sufficient to safeguard against an erroneous deprivation that will practically never occur.

Seriously?  Let's take the second option first - have you ever appeared before a judge and asked him or her to do something that's not within their power?  It doesn't make them happy.  That hardly seems like a reasonable option.  As for arguing with a cop, that's a good way not only to be loaded down with further charges (and, presumably, $30 fees) but wind up beaten, tazed, or shot.  Arguing with a cop, even if you're in the right, almost never ends well.

On top of that, the court concludes that the village has a legitimate interest in collecting this some kind of user fee, to help defray the cost of them deciding to arrest you.

Judge Hamilton dissents from this decision and lays out why it's ludicrous in the first paragraph:

This should be a simple case. The village’s 'booking fee' ordinance is unconstitutional
on its face. It takes property from all arrestees—the guilty and the innocent alike—without due process of law. The deprivation occurs at the time of arrest, immediately and
finally. It occurs based on only the say-so and perhaps even the whim of one arresting officer. By no stretch of the imagination can that be due process of law. The fee is in substance a criminal fine, modest but a fine nonetheless, and it is imposed regardless of the validity of the arrest and regardless of whether there is any criminal prosecution or what its outcome might be.

He also points out the absurdity of the court's "no risk of erroneous deprivation" conclusion:

the risk of erroneous deprivation is in fact very substantial. The pivotal decision that imposes the deprivation is a lone police officer’s decision to arrest. A lone police officer’s decision is subject to judicial review even when she writes a mere speeding ticket, let alone imposes a criminal fine. Many people who are arrested are not even charged with crimes, and many charges result in either dismissal or acquittal, so that as many as 30 percent and perhaps nearly 50 percent of arrestees may pay the fee without any criminal conviction.

In the end, the most difficult thing for Judge Hamilton is whether the scheme is more Orwellian or like something out of Lewis Carroll.  Both, is what he concludes.

As for the "user fee" concept, he points out that cases involving user fees all arise when someone voluntarily takes advantage of some service, like crossing a toll bridge.  Being arrested is not, except in some truly rare circumstances, a thing done voluntarily:

During oral argument, the village tried to justify this user fee theory by explaining that a person arrested by mistake would still properly owe the fee because he would have
benefitted from the “services” of being photographed and fingerprinted. That argument surely qualifies as Orwellian.

Indeed.  Regular readers know that one of my pet peeves is states locking people up on the cheap.  If you want to deprive people of their liberty, you have to pay for it.

So, a bit of advice as you're making vacation plans for the summer - avoid the village of Woodbridge, Illinois.  If they've got nobody to arrest, they've got no need to raise funds, right?

Changing the Labels Doesn't Change Reality

I'd like to think I'm above falling for click-bait headlines, but I guess I'm as susceptible to it as anyone else.  So, when I saw the subheadline on this piece at Reason - "Would a free society be a crime-free society?" - I just couldn't help myself.  Shame that the substance doesn't live up to the promise.

To be fair, Sheldon Richman says right off the bat that he's not Utopian and doesn't:

foresee a future of new human beings who consistently respect the rights of others.

Rather, he investigates the historical distinction between crimes - wrongs committed against and punished by the state - and torts, which are private causes of actions individuals bring against each other in order to be made whole again.  In simple terms, a murder is a crime and will result in the perpetrator being sent to prison, while medical malpractice is a tort, resulting in someone (an insurance carrier, most likely) making the victim whole via monetary compensation.

The history itself is interesting.  As Richman explains, tort once reigned above all.  It was only as English kings began to accrue more power (and, Richman argues, quest for more money) that more things became crimes.  Richman sees this development as something "[l]iberty-minded people should regret," although it happened centuries ago.  He argues, while stating that the reasons are "too obvious to need elaboration," that a justice system aimed solely at restitution is more preferable to what we've got now.

I can't say I buy that, possibly because I occasionally deal with clients who are ordered to pay restitution, in the rare case where there's an actual victim involved.  The sad fact is, for a lot of people, paying full restitution simply isn't an option.  Furthermore, you'll still need some kind of coercive agency with the power to force those who can pay to actually do so.

Aside from practical considerations, I'm not sure restitution as the goal of the system is theoretically feasible.  Most tort cases involve monetary damages that can fairly easily ascertained.  But how does one determine the proper amount of restitution for murder?  Or rape?  Or some kind of systematic problem like perjury?  It just doesn't lend itself well to those kinds of crimes.

In the end, all this is sort of pointless because Richman doesn't show how any revised system would eliminate crime itself, it would just change the labels.  There may be different ways to deal with the aftermath of somebody whapping me over the head with a crow bar or kidnapping somebody's child, but regardless of what you call the system those are still crimes as any modern person would call them.  Sadly, Richman had it right when he said that people aren't simply going to start behaving nicely anytime soon.

I'm sympathetic to what, I think, is Richman's underlying point - that the prevalence of victimless crimes is something that ought to be of concern to anybody who thinks "freedom" is a good idea.  As I said, the current criminal justice system is clogged with people charged with offenses that have no actual victim.  But swinging all the way to the other direction and thinking, just by switching a label, that we can eliminate victims is just silly.

On a side note, I find it ironic that a libertarian and/or anarchist would resort to dealing with a problem simply by changing the label on it.  That doesn't make the problem go away, just obscures it for a while.  It's a favorite tool of repressive governments everywhere.  As Babylon 5 once had a character explain when asked when all the problems on Earth - homelessness, crime, unemployment - were solved:

When we rewrote the dictionary.

In the end, it's a trick, and not even a very clever one.

You Wouldn't Like Them When They're Angry

When courts review an encounter between a cop and a member of the public to see whether the Fourth Amendment prohibition against unreasonable searches and seizures has been breached, they do so by evaluating the "totality of the circumstances."  That is, facts that, taken in isolation might appear innocent, can be given a not-so-innocent meaning when evaluated in context.  As a result, it's hard sometimes to say just what behavior will get you in trouble with cops and what won't.

To take just one example, in US v. Foreman, 369 F.3d 776 (4th Cir. 2004), a driver was pulled over based in part on the driver's "lack of eye contact" with the officer.  The court upheld the stop, but one of the judges noted (citations omitted):

[The officer's] instant reliance on [the driver's] lack of eye contact is at odds with the government's stance in other cases, in which officers attempt to ground reasonable suspicion — and sometimes successfully do so — on the fact that an individual looks or stares back at them.

In other words, it's hard sometimes to figure out just how to behave when there's a cop about.

One thing, however, is for certain - if you make a cop angry, you will most likely regret it.  As noted legal theorist Chris Rock once explained in a related context, if you make the cops chase you, you can be damned sure they're bringing an ass kicking with them.  Similarly, YouTube is littered with clips of drivers who, during a traffic stop, piss off the officer and wind up getting tasered (or worse) for their sin.

This came up most recently in one of the odder crimes to circle the Web, the theft of electricity.

Earlier this month, a Georgia man plugged his Nissan Leaf into an outlet on the outside of a school to recharge.  According to the man, he did this while watching his son play tennis at the school courts.  Later, rather famously, he was arrested for theft for stealing what appears to be, about, five cents worth of electricity.

Putting to one side the whole issue of whether this is either really a crime or, if it is, one that warrants 15 hours worth of detention after arrest, consider the police version of events.  In it, an officer responds to a 911 call and found the car hooked up at the loading dock.  Then:

a man on the courts told the officer that the man playing tennis with him owned the vehicle. The officer went to the courts and interviewed the vehicle owner. The officer's initial incident report gives a good indication of how difficult and argumentative the individual was to deal with. He made no attempt to apologize or simply say oops and he wouldn't do it again. Instead he continued being argumentative, acknowledged he did not have permission and then accused the officer of having damaged his car door.

* * *

Given the uncooperative attitude and accusations of damage to his vehicle, the officer chose to document the incident on an incident report. The report was listed as misdemeanor theft by taking.

The emphasis is mine.  You'll rarely find it so boldly stated - this guy got charged with a crime because he was an asshole to the cop.  Granted, it's never wise to argue with a cop, particularly if it looks like he's not going to write you up for anything (if you get pulled over and the cop says you were doing 75 and you were only doing 73, if he's going to let you off with a warning why argue the point?), but that's still not a really good basis to charge someone with a crime, either.

Having said that, sometimes you can be too nice.

In Ohio, an officer pulled over someone for going 45 in a 35 zone.  As a court later related:

Patrolman Haslar approached Fontaine’s vehicle, advised him of the reason for the stop, and then requested his driver’s license, proof of insurance, and registration, which Fontaine immediately provided. Patrolman Haslar further stated that, during this exchange, he became suspicious of criminal activity. Specifically, Patrolman Haslar testified as follows: 'While speaking to Mr. Fontaine I felt that his body language and his behavior was a little bit unusual. He was extremely — like almost overly polite, and he was breathing heavily at times while I was talking to him.'

Calling this "reasonable suspicion" (the lowest measure of evidence needed to justify a search), the officer patted down the driver and a second officer arrived with a drug dog.  Some pot and a gun were found in the car and the driver was arrested.

Thankfully, the trial court suppressed that evidence.  Even more thankfully, the appeals court shot down an appeal by the state, agreeing that being "overly polite" and breathing heavily weren't enough to constitute reasonable suspicion.  Still, the fact that it was even arguable shows how far down the rabbit hole we've gone when it comes to the Fourth Amendment.

Quick Hits

As usual, when I disappear for a few weeks, things start to pile up. Here’s a few interesting things that passed through my field of vision in the recent past.

Good News on Private Prisons?

I’ve written before about the evil of privatizing prisons, replacing one of the state’s core functions (under anybody’s idea of how big the “state” should be) with businesspeople in pursuit of a healthier bottom line. Shockingly, it turns out that when the bottom line is in play, things at the prison actually go to shit. It’s gotten so bad that several states have backed out of their contracts (via).

Admittedly, it’s hard to ignore stuff like this:

Idaho cut ties with the corporation on Wednesday, which turned the state’s largest prison into a violent hellhole inmates called ‘Gladiator School.’ Earlier this year, CCA was caught understaffing the prison and using prison gangs to control the population. The company admitted to falsifying nearly 4,800 hours of staffing records to squeeze more money out of the state for nonexistent security work. Shift logs at the prison showed the same security guards working for 2 to 3 days at a time without breaks.

Similar conditions popped up in Mississippi and Texas (in two different facilities). My cynical side thinks that the only way the private prison movement gets turned back is when it turns out they actually cost more than doing it the old fashioned way. Maybe I’m wrong. I’d like to be.

Your Militarized Police Force

Radley Balko has written for years about abusive police tactics and the Fourth Amendment, first over at Reason and more recently at Huffington Post. In the current issue of the ABA Journal he provides an overview of the rise of militarism in American police forces and how it manifests itself every day. He writes:

Today in America SWAT teams violently smash into private homes more than 100 times per day. The vast majority of these raids are to enforce laws against consensual crimes. In many cities, police departments have given up the traditional blue uniforms for “battle dress uniforms” modeled after soldier attire.

* * *

But it isn’t just drugs. Aggressive, SWAT-style tactics are now used to raid neighborhood poker games, doctors’ offices, bars and restaurants, and head shops—despite the fact that the targets of these raids pose little threat to anyone. This sort of force was once reserved as the last option to defuse a dangerous situation. It’s increasingly used as the first option to apprehend people who aren’t dangerous at all.

Read the whole thing, and don’t forget the various statistical tables and what not spread throughout. The explosion in the number of SWAT teams (and their deployment) over the past few decades is staggering. Balko makes a pretty good argument that the growth is driven by money, particularly a federal grant program with the name Byrne attached to it (unfortunately).

Oh, and they shoot dogs too. Lots of ‘em.

Judicial Idiocy, With a Prosecutorial Assist

Courtroom misbehavior has to really be of the prime variety to surprise me anymore these days, but this situation certainly meets that high standard.

Let’s set the scene – a courtroom in Texas, where a criminal trial is underway. A prosecutor in the gallery (not the one actually trying the case) gets a text, suggesting a line of questioning for the prosecutor to pursue. She scribbled the text “word for word” and has her investigator run the not up to the prosecutor. Now, guess who sent the text?

The trial judge.

That’s right. The judge presiding in a criminal case gave advice to the prosecution appearing before her in that case! Even worse – or at least equally bad – is that the other prosecutor, used as a conduit for the message, didn’t think twice about passing it on. The only positive note is that the investigator reported the judge, probably at the risk of losing his own job.

But the absolute icing on the cake of idiocy? That conduit prosecutor who passed on the note? She’s a judge now, too. Of course she is!

Your Facebook Friends Are Not Legal Authority

The other day I took a little dig at Roger Dean (or his lawyers, actually) for including in his lawsuit against James Cameron an assertion that his claims were “backed up by ‘numerous comments on the internet.’” Sadly, I only had to wait another day for an even sillier version of the appeal-to-the-Internet legal argument to appear, and in a much more local dispute, to boot.

Wyoming County is nestled within the southern West Virginia coal fields, having been carved from neighboring Logan County in the middle of the 19th century. Last week, a group of local religious folks built a Ten Commandments monument on the courthouse lawn, uninvited and without permission (or warning, apparently). What’s going to happen to it now is, of course, a source of controversy.

The county prosecutor, who doubles as the county attorney,* sees nothing problematic about the display. In reaching that decision, he consulted the ultimate authority:

Cochrane asked his Facebook friends for feedback and about 280 people of 300 responded in favor of the monument.

Thankfully, we’re not to the point where legal questions – much less ones of Constitutional magnitude – are resolved by Facebook plebiscite.

Cochrane’s advice to the county commission is to do nothing, right now, and let the monument stay. To his credit, he’s on record as supporting the placement of other monuments, including, perhaps, one like American Atheists recently put up in Florida to complement another Ten Commandments monument. That’s because, presumably, Cochrane has some familiarity with the concept of a public forum.

The Supreme Court has recognized that what speech a government is required to allow in a particular area is largely determined by how open to the public that area is. Traditional public forums – think sidewalks and such – are nearly wide open and are subject only to content-neutral time, place, and manner restrictions. Other areas can become public forums based on governmental action.

The Fourth Circuit dealt with a good example of the public forum issue recently. It arose in a case from Lexington, Virginia in which the Sons of Confederate Veterans wanted to put up Confederate flags on some city light poles in honor of Lee-Jackson Day (a state holiday in the Old Dominion). The city agreed, but after protests from the citizenry it instituted a new policy for such displays that limited flags hung from the city poles to those of the United States, Virginia, and the city of Lexington.

The SCV sued, arguing that the city’s decision violated their First Amendment rights. The court disagreed and upheld the dismissal of the lawsuit. The court noted that prior to the revision in city policy they light poles had been a limited public forum, open to all groups and used by, among others, the city’s two universities. However, by adopting the new policy and limiting the displays to government flags, it closed the public forum. Notably, the court shot down the SCV argument that an improper motive for closing the public forum was a First Amendment violation in and of itself.

So, the citizens of Wyoming County likely have two options – leave the Ten Commandments monument up as part of a public forum that welcomes others or take it down and close the forum to religious speech altogether to avoid running into Establishment Clause problems. For, when he says this:

Cochrane said the issue is whether the monument promotes Christianity over other religions, and he doesn't think it does. 

* * * 

‘I researched different religions as far as whether the Ten Commandments is discriminatory or not,’ Cochrane said. ‘Basically a type of Ten Commandments is cut across a lot of religions.’ 

* * * 

The monument promotes laws that are based on some of the commandments and not any religion, he said. Also many people recognize the Ten Commandments as a universal code of conduct.

Cochrane is utterly wrong. Yes, the Ten Commandments includes some broad, general, moral principles to which most people would agree (don’t kill, lie, etc.), though those are hardly unique to Judaism, Christianity, or Islam. However, several of the Ten Commandments are explicitly about the proper worship and adoration of the Abrahamic God:

• I am the Lord thy God 

• Thou shalt have no other gods before me

• Thou shalt not make unto thee any graven image 

• Thou shalt not take the name of the Lord thy God in vain

Anyone who thinks those apply to “a lot of religions” is in the same headspace as the waitress at Bob’s Country Bunker, who explained that they have “both kinds” of music there – “country and western!” Those are religious directives, explicitly at odds with not only the directives of other religions with billions of believers around the world but with those of us who have no religion at all.

It’s perfectly OK to believe them yourself, to put them up in your house or on your lawn. But if you want the allure of state backing, by putting them up next to the courthouse, you’ve got to invite others to play, too.

* In most of the smaller West Virginia counties, the prosecutor does this kind of double duty, advising the county commission on civil legal matters.

We Asked For This

The reaction to last week’s revelations (courtesy of Glenn Greenwald) at the Guardian) of sweeping data gathering by the National Security Agency, the predominant reaction from the public has been one of outrage.* Even folks who otherwise fall on the “security” side of the security/civil liberties line stopped and asked if things had gotten a bit out of hand. But even the outrage is justifiable (and I think it is), should anybody really have been surprised by this?

Fourth Amendment expert and former NACDL President John Wesley Hall explains how, as distasteful as the NSA’s plans might be, they probably aren’t unconstitutional under current law:

All this data collection is perfectly legal under pre-Patriot Act law and compounded by it. In 1976, the Supreme Court held in Miller v. United States that it did not violate the Fourth Amendment for the government to gather information from bank records of a depositor under investigation. In 1979, the Court held in Smith v. Maryland that it did not violate the Fourth Amendment for the government to put a pen register on a telephone to record only the numbers being dialed because the telephone call wasn’t recorded. That was, after all, all technology allowed at the time. Think of the NSA as one huge pen register.

As for the Patriot Act, Hall notes that it:

became law without any critical thought, and it made it carte blanche for government to gather information about us. Couple this with the information technology available over the last decade and the ability to store Brontobytes of data, and that we see now was inevitable. I’m not the slightest bit surprised. Nobody keeping up is surprised.

Even beyond that, the primary bulwark keeping the government from searching people (and their stuff) willy nilly, the Fourth Amendment, has been slowly hacked away for decades. Well before 9/11 and the War on Terror, we as a society had largely ceded the protections against unreasonable search and seizure in the War on (Some People’s) Drugs. The quantum of evidence needed to search or seize someone has gradually gone down, while the only effective tool to punish breaches – the exclusionary rule – is on its death bed. In the grand tradition of “when they came for the [INSERT GROUP HERE] I did nothing,” society was largely OK with all this, as it only impacted “those people.” Who gives a shit about goddamn drugies, anyway?

Ironically it’s the drug angle that writer/producer David Simon (of The Wire, Treme, etc. fame) uses to explain why we shouldn’t really be all that freaked out about this (via):

Allow for a comparable example, dating to the early 1980s in a place called Baltimore, Maryland.

There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.

Think about it. There is certainly a public expectation of privacy when you pick up a pay phone on the streets of Baltimore, is there not? And certainly, the detectives knew that many, many Baltimoreans were using those pay phones for legitimate telephonic communication. Yet, a city judge had no problem allowing them to place dialed-number recorders on as many pay phones as they felt the need to monitor, knowing that every single number dialed to or from those phones would be captured. So authorized, detectives gleaned the numbers of digital pagers and they began monitoring the incoming digitized numbers on those pagers — even though they had yet to learn to whom those pagers belonged. The judges were okay with that, too, and signed another order allowing the suspect pagers to be “cloned” by detectives, even though in some cases the suspect in possession of the pager was not yet positively identified.

All of that — even in the less fevered, pre-Patriot Act days of yore — was entirely legal.

Simon stresses that, like the NSA program exposed in the Verizon order, they weren’t listening to calls, just getting the “metadata” (if the term was around back then). That information, he points out, is already generated without the NSA’s request and, increasingly, is going to be stored for some kind of future use by the private companies that produce it. To not utilize it for something as serious as trying to thwart terrorist attacks (or develop more traditional particularized individual suspicion) is silly.

I think Simon’s right that the only thing about the NSA program that’s different from his Reagan-era memory of Charm City is the scope of the information gathering, but, unlike him, that still bothers me. It’s possible to, at the same time, not be particularly surprised by something and yet still outraged. Furthermore, Simon appears to take Obama at his word when he says nobody’s listening to our phone calls.** There’s just no reason to believe that. As this piece at Slate points out, there’s a history of surveillance operations straying far afield from the legitimate, limited goals.

While the NSA’s programs are outrageous in and of themselves, what’s more outrageous is that they may be perfectly legal. They’re clearly authorized by statute and have been blessed by Congresspersons in the know. And, of course, they have the approval of a pair of presidential administrations from theoretically opposite parties. Furthermore, I don’t have any confidence that they violate the Fourth Amendment in its current emaciated form.

No, the real outrage is that we’ve let it come to this. For too many years we’ve traded liberty for security, from crime or from terrorism, on a bipartisan basis. If things have really gone too far for too many people, maybe we can start to roll things back. But I won’t hold my breath.

* Or maybe not. Via Orin Kerr at Volokh, a Washington Post poll found that only 41% of respondents think the NSA’s phone program is “unacceptable,” compared to 56% who find it “acceptable.” There appears to be the inevitable partisan gloss as well. We are so fucked.

** To be fair, in the comments he expresses more concern about the PSRIM internet surveillance program, which does appear to reach content, not just technical metadata.

Quick Hits, of a Mostly Familiar Nature

Here are a few brief stories that caught my attention while I was away getting’ matrimonyed. A couple of them tap into things I’ve written about before, so they’re a bit familiar. I’m working my way back into things, obviously.

Public Art for Fun & Profit

Back in April I wrote about the latest example of now-you-see-it, now-you-don’t public art that was creating a stir. In that case, it was a Banksy mural in the London neighborhood of Harringey that appeared, as much of his stuff does, overnight. Several months later it disappeared just as suddenly. At the time, there were issues over who removed the mural and what it’s fate might be.

Flash forward to last Sunday, when “Slave Labor (Bunting Boy)” fetched a cool $1.1 million at a private auction in London. That came after an initial auction in Miami was scuttled at the behest of the Harringey town counsel. Not surprisingly, the ones selling the mural were the owners of Wood Green Investments, who owned the building upon which it was installed. They were entirely within their rights to do so.

Art Is Not the Artist

I’ve argued before that it’s best to separate an artist from his art. I don’t really begrudge people who can’t or won’t do that, but I think it’s a bit short sighted. You cut yourself off from a lot of interesting art if it all has to pass through some kind of ethical litmus test. Besides, on a practical level, I’d rather you not read what I write because it sucks instead of the fact that I’m a Democrat/atheist/prog fan/DC United supporter.

Here’s a recent example of where getting up on your high horse might not be that good of an idea. A grad student at Northwestern, a member of the University Chorale, objected to being required to perform a particular piece, Howard Hansen’s Song of Democracy. Not because it was too difficult or aesthetically poor, but because the lyrics for that piece were taken from a Walt Whitman poem and Whitman, as were many of his contemporaries, was a big-time racist. The professor threatened to fail the student, but it’s unclear how the dispute was resolved.

It’s one thing to object to performing something that in and of itself is racists, sexists, whatever. But backing up further and requiring ethical purity from the original author is composer is really asking for trouble. As my friend who was recently-doctored in conducting pointed out, such a litmus test would eliminate most of the cannon of established Western music.

I’d go on to argue it would do the same with art, literature, and nearly any other endeavor. And while nobody can take away your right to take umbrage at such things, aren’t there more important things to worry about than whether the lyricist of a song you have to sing in class was a douchebag a century and a half ago?

Oh My, Sexy Werewolves! In Prison!

Finally, here’s a fun story that actually raises important issues of free speech and criminal justice. An inmate in California has won the right to possess (and read, presumably) a book called The Silver Crown. Why did he have to go to court in the first place?

The 262-page novel tells the story of Iris, a werewolf hunter who ends up falling in love with one of her prey. The book contains ‘a great number of graphic sexual encounters, one per chapter through most of the book, including detailed descriptions of intercourse, sodomy, oral-genital contact, oral-anal contact, voyeurism, exhibitionism and ménage à trois. Semen is mentioned,’ Richman wrote.

The judge also notes that the book doesn’t advocate or advance violence and the sex isn’t really all that weird and doesn’t include, for example, bestiality (unless, the judge explains, you include the werewolves!).

Prisons generally aren’t keen on letting inmates have possession of sexually-related materials. The wife used to tell me about dealing with those kinds of regulations during her days at Borders. So it’s a bit of a pleasant surprise to see a court not simply bow down to the prison’s regulations.

But what’s really amusing is that you can tell the judge wasn’t all that happy about having to deal with The Silver Crown in the first place:

’Personally, we would be hard-pressed to say The Silver Crown has ‘significant’ literary value and is a work ‘of great import,’ Richman wrote. But, he concluded, ‘we cannot simply dismiss the work as nonserious literature because it deals with werewolves and other paranormal creatures and activities. For better or worse, some segment of the population is fascinated by werewolves and other mythical beings. ... Werewolves, in fact, have played a role in popular fiction for centuries.’

I’m not sure anyone who writes about himself in the third person gets to knock anybody else’s literary choices.

The First Amendment Takes It On the Chin – Twice

The First Amendment rarely fares well when it bumps up against public school personnel. Whether it’s the Free Speech Clause or one of the religion clauses, teachers and administrators have real trouble finding the line that separates constitutional from unconstitutional conduct. Sadly, two recent events in West Virginia have provided vivid demonstrations of the problem.

The first, even more sadly, emerged from my alma mater, George Washington High School in Charleston.

Principal George Aulenbacher allowed an abstinence-only “speaker” named Pam Stenzel to come to the school. The assembly, at which attendance was mandatory, was paid for:

by a conservative religious organization called ‘Believe in West Virginia’ and advertised with fliers that proclaimed ‘God’s plan for sexual purity.’

It doesn't take a First Amendment scholar to know that arguments for “God’s plan” about anything doesn’t have any place in a public school. If there’s a basis for abstinence only education in schools (I’d argue there isn’t, but that’s for another day), it needs to be one divorced from anyone’s concerns about gods, or the lack thereof, and based on objective, verifiable facts.

Even worse, Stenzel’s shtick is abusive and confrontational:

Stenzel has a long history of using inflammatory rhetoric to convince young people that they will face dire consequences for becoming sexually active. At GW’s assembly, Stenzel allegedly told students that ‘if you take birth control, your mother probably hates you’ and ‘I could look at any one of you in the eyes right now and tell if you’re going to be promiscuous.’

This piece at Salon has more background on Stenzel, including her reliance on bogus statistics and facts. Her routine includes some other gems:

While talking about the importance of only ever having sex with one person for your entire life, she says, ‘If you have sex outside of that context you will pay. No one has ever had more than one partner and not paid.’

Thankfully, a GW senior, Katelyn Campbell, objected to the whole assembly, refused to attend, and contacted the ACLU. But to truly take the cake for this awful affair, Aulenbacher threatened her for speaking out:

The high school senior alleges that Aulenbacher threatened to call Wellesley College, where Campbell has been accepted to study in the fall, after she spoke to the press about her objections to the assembly. According to Campbell, her principal said, ‘How would you feel if I called your college and told them what bad character you have and what a backstabber you are?’

The fine folks at Wellesley College, as expected, were not not fazed by Aulbacher’s clumsily bizarre attempt at retaliation. After botching the Establishment Clause premise, Aulbacher then went ahead and violated the spirit, if not the letter, of the Free Speech Clause by trying to punish Campbell for publicly objecting. At least that attempt fizzled and died.

So, while my alma mater’s principal was failing the Establishment Clause (with a Free Speech chaser) in Charleston, a teacher in Logan was flunking the Free Speech Clause.

A middle school student wore a NRA T-shirt to school. This upset at least one member of the school staff:

White said that Marcum had been wearing the shirt without causing any problems from homeroom at the beginning of the school day through fifth period, and was confronted by one of the school’s teachers while getting his lunch. When Jared refused to remove or reverse the shirt, the teacher began to raise his voice, and it caught the attention of students eating their lunch, White said.

Marcum was eventually arrested and taken away by police after refusing to remove the shirt. White said that when police told the teen they were going to arrest him, he stuck his hands out and said, ‘Fine.’

Now, as the Supreme Court has said:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

And that was in 1969. I agree with Eugene Volokh that a policy banning T-shirts like the one this student wore is most likely unconstitutional. It doesn’t even really seem like a close call. Thus, there was no basis for the teacher to ask the student to remove the shirt, much less for him to be arrested (?!) for doing so. It was fine for the teacher to approach the kid and ask about his shirt – free speech is a two-way street, after all – but any escalation seems to be the teacher’s fault, not the kid’s. One would expect a teacher to have better control of his/her emotions than a middle school kid, for fuck’s sake.

I don’t envy teachers or school administrators. Riding herd over hundreds of kids everyday raises problems on a regular basis that I’m sure I could never dream of. And, sadly, First Amendment jurisprudence in some areas isn’t as clear as it should be. But there are some pretty damned clear lines that can’t be crossed, with don’t bring people into a public school to push their version of God’s will and kids have a right to express themselves being two of them.

That either of these situations flared up, much less became nationally-recognized news items, is evidence that somebody needs to stay after class and do some remedial work.

Justice Is Bigger Than Vengeance

I once had a conversation with a friend of mine about the death penalty. We were both generally on the same side of the issue – that is, we were both against it – but she admitted it was difficult for her to imagine not wanting someone who killed one of her loved ones to suffer and pay the ultimate price. I argued that was why we don’t let crime victims set policy. Vengeance is a legitimate emotion, but it’s not a sound basis upon which to setup a criminal justice system that handles thousands of cases a year. She conceded that I had a valid point.

Thane Rosenbaum, a law prof (and novelist) at Fordham, disagrees. In fact, in an article last month for The Chronicle of Higher Education, he argued that not only should vengeance have a seat in the criminal policy bus, it should get to drive. Maybe he’s onto something, since he apparently has the magical ability to read the minds of others:

But the distinction between justice and vengeance is false. A call for justice is always a cry for revenge. . . . No matter what they say, victims aren’t choosing justice over vengeance; they are merely capitulating to a cultural taboo, knowing that the protocol in polite society is to repudiate revenge.

I’m always wary of someone who claims that something “always” anything and has the gall to tell others what they’re actually thinking (which is double odd since he’s setting himself up as their advocate). What does Rosenbaum say to families of murder victims who actively argue against the death penalty, even in cases involving their loved ones? Are they deluded? And if they are, doesn’t that argue for keeping victims at a greater distance from the criminal justice process?

On the basis of his sweeping generalization, Rosenbaum argues that “there is no justice unless victims feel avenged.” The problem is that Rosenbaum views vengeance as some physical thing that can be objectively measured and, therefore, we can easily determine when such avenging has been accomplished. He analogizes it to business transactions, but those do involve easily identifiable debts and repayments (more troublingly, he also analogizes to “ledgers we keep with . . . intimate partners to be balanced,” which is just sad).

Life, in Rosenbaum’s eyes, is like a movie in which revenge is not only an acceptable goal, but a laudable one:

We watch revenge films without embarrassment because on some primal level we know that just deserts are required in the moral universe, that those who commit crimes must be punished according to their blameworthiness, and that wrongs must ultimately be righted. It’s not our lust for violence that explains why we applaud payback, but our absolute need to live in a world that promotes fairness, law and order, and social peace.

Yes, because the revenge films of which he speaks, such as Braveheart and Gladiator, are held up as shining examples of the complexity of human relations. Except, of course they aren’t. We like revenge flicks because they present an easily identified wrong, committed by an obvious bad guy, who eventually gets his due. They’re a parody of real life, not accurate reflections.

That simplistic, black/white view of the universe, comes through even more clearly in a comment Rosenbaum made on NPR while discussing this issue:

We run away from this idea that the death penalty is something that we should abhor. But remember, when someone takes an eye, or in this case a life, they’ve made a decision to take a life. And there’s - one wonders why there’s - that there should be a discount on what payback should look like.

It’s certainly a simpler way to look at punishment to say, “you take a life, your forfeit your life,” but to do so would reject centuries of Western law that actually gives a shit about a defendant’s state of mind when he acts. Consider the following scenarios:

• Killer shoots Victim in the head as part of a contract killing
• Killer shoots Victim in the head in the heat of passion after finding Victim in bed with Killer’s wife
• Killer shoots Victim in the head by accident, perhaps while “practicing” Wild West tactics
• Killer shoots Victim in the head because he correctly thinks that Victim has a weapon and is going to kill him
• Killer shoots Victim in the head because he incorrectly thinks that Victim has a weapon and is going to kill him
• Killer runs over Victim with his car, while driving drunk
• Killer runs over Victim with his car, while completely sober
• Killer runs over Victim with his car, while swerving trying to avoid a small child running out into the road

I could go on all day. Most of us would think the proper punishment would have some relation to the culpability of the Killer and would vary from case to case. However, by Rosenbaum’s calculus, the punishment for the Killer in all those scenarios is the same – off with his head – presumably even in the true self-defense situation. After all, there’s a dead Victim and an identified Killer. The only way out of that is to somehow argue that a justified killing doesn’t lead to proper demands for vengeance, but I expect Rosenbaum will find plenty of loved ones of people killed in “self-defense” who think it was anything but.

Rosenbaum’s entire argument revolves around this idea of vengeance as something that can be located with mathematical certainty. For example, he complains about the impact of plea bargaining:

So we tolerate a legal system where over 95 percent of all cases are resolved with a negotiated plea—bargained down from what the wrongdoer rightfully deserved. That means that convicted criminals are rarely asked to truly repay their debt to society. Even worse, this math-phobic system tragically discounts the debt owed to the victim, who is grossly shortchanged.

I’m not sure this shows what Rosenbaum thinks it does, however. Firstly, that 95% figure covers all offenses, a large proportion of which have no victim at all. In fact, in my practice the case with an actual victim is vanishingly rare. So what percentage of cases with victims plead out? Secondly, why were those cases resolved by plea agreement? Were the original charges overly harsh given the evidence? Was it a matter of securing a conviction to a lesser offense or letting a guilty defendant walk free after an unsuccessful trial? Or does Rosenbaum think we just do away with the actual guilt phase of proceedings and focus entirely on what the victims want? Once again, a victim may want the perpetrator excessively punished, regardless of what evidence that prosecution could actually muster in court.

Rosenbaum’s attempt to drag us into some international consensus on this issue isn’t persuasive, either:

Other nations around the world allow for revenge—whether in the form of individual relief or under color of law.

Except that most western nations, the ones we think of our peers in the whole Enlightenment experiment, have almost completely rejected his easiest sale for vengeance, the death penalty. So if, in fact, lots of other nations don’t allow for revenge, which ones do?

And other nations, including Cambodia and Iran, better incorporate vengeance within their legal systems. (Iran’s and Cambodia’s human-rights records are a different matter entirely.)

Ah, all right, I see. Let us not look to European models, which protect a shared interest in human rights, but instead to nations with troubling human rights records, as if the two are not related.

In the end, Rosenbaum’s argument is like vengeance itself – unpredictable and hard to grasp fully. He writes repeatedly about the system’s failure to include victims more fully in the process, but doesn’t offer any ideas as to how they should be better integrated. Hell, he may be right – as I said, so few of the cases I deal with have victims in the first place. But giving ourselves over to base vengeance, and upending our entire criminal justice system in the process, doesn’t seem the right way to go about it.

Vengeance is a personal thing. What sates the desire for revenge in one person won’t do it in another, even when the wrongs committed against them were the same. Justice, by contrast, is a societal value, one that is important not because it gratifies particular individuals but because it keeps society functioning in the best possible way. We shouldn’t forget about vengeance when we think of justice, but neither should we let it be the prime mover.

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.