Then Why Use Them In the First Place?

At oral argument the other day in the Paul B. Johson v. State of Florida, Justice Pariente of the Florida Supreme Court expressed frustration at the naked opportunism that so often surrounds the State's use of snitch testimony. At trial, prosecutors depict snitches as earnest, well-intentioned informants conveying critical, damning admissions that a defendant allegedly revealed to them. Post-conviction when it comes to light that – surprise, surprise – the snitch lied at trial, the State goes to great lengths to depict the snitch testimony as having always been of marginal importance to the State's otherwise unassailable case. Pariente implicitly asks the obvious question:

These jailhouse snitches used to be used a lot and then they recant, and [as a judge] you [ask yourself]... "why in a case, if it’s such a clear case... why does the State go and use these kind of people?" And it always ends up having the potential for infecting the trial. And then when it comes out that they’ve recanted or something else, [the State claims] “well, they really weren’t that important anyway.” And that’s a frustrating thing for the court, because if they’re not important, let’s not use them, but once they’re used, [for the State] then to say “well, we didn’t need them and it wouldn’t have made one bit of difference,” it seems, it’s a little bit difficult to make that argument.

Though snitches are among the least reliable forms of evidence, the State loves to use them. They're an easy and effective way to manufacture evidence against a defendant. A lazy investigator's dream. No need to hit the pavement and interview witnesses or perform tests in a lab when a jailhouse snitch will testify as needed. And if the snitch is later exposed to be a liar, the State can always feign surprise and argue that the conviction should stand.

Pushers

Even as the United States punishes its own citizens harshly for trafficking, selling or even possessing drugs, the C.I.A. conspires to prop up Ahmed Karzai, the brother of Afghanistan's president – a man who conspires with drug kingpins and facilitates the export of opium, heroin and other drugs. The New York Times reports that according to current and former American officials, Karzai has received "regular payments" from the C.I.A. for "much of the last eight years."

[Evidence] suggests strongly that Mr. Karzai has enriched himself by helping the illegal trade in poppy and opium to flourish. The assessment of these military and senior officials in the Obama administration dovetails with that of senior officials in the Bush administration....“Hundreds of millions of dollars in drug money are flowing through the southern region, and nothing happens in southern Afghanistan without the regional leadership knowing about it”....

Counternarcotics officials have repeatedly expressed frustration over the unwillingness of senior policy makers in Washington to take action against Mr. Karzai — or even begin a serious investigation of the allegations against him. In fact, they say that while other Afghans accused of drug involvement are investigated and singled out for raids or even rendition to the United States, Mr. Karzai has seemed immune from similar scrutiny.

Torture is a war crime unless the C.I.A. does it, in which case we call it patriotic. Conspiring with drug traffickers can get you a life sentence, unless the C.I.A. does it, in which case we call it foreign policy.

I'd love to see some local American prosector bring drug conspiracy charges against Karzai. Given how broad American conspiracy laws are, it's quite possible, legally speaking, that such charges could even be brought against members of the C.I.A. who are effectively bankrolling him. Americans have been convicted based on less. Why is it that we spend so much time and money and moral indignation punishing American drug users when our very government is facilitating the supply?

The Village

Certain progressive bloggers have taken to referring to Washington, DC as "The Village." It's a shorthand for the bipartisan, vain, venal, insular, corrupt, self-important elite cocktail party culture that dominates the city and by extension our national government. The "Villagers" are politicians, media figures, lobbyists, socialites, etc. of both parties who have a stranglehold on our politics and who plunder government as if it were their personal fiefdom, all the while making claims to be acting on behalf of some mythical "real" Americans.

Digby, one of the early employers of the term, reviews its meaning:

I have explained this before but I think it's worth repeating once in a while since the term is actually fairly common in the blogosphere. Greg is right that it stems from the notorious Sally Quinn article about the Clintons. But it's more than that. It's shorthand for the permanent DC ruling class who have managed to convince themselves that they are simple, puritanical, bourgeois burghers and farmers, even though they are actually celebrity millionaires influencing the most powerful government on earth.

It's about their phoniness, their pretense of speaking for "average Americans" when it's clear they haven't the vaguest clue even about the average Americans who work in their local Starbucks or their drive their cabs. (Think Tim Russert, good old boy from Buffalo, lately of Nantucket.)It's about their intolerable sanctimony and hypocritical provincialism, pretending to be shocked about what they all do, creating social rules for others which they ignore themselves.

The village is really "the village" an ersatz small town like something you'd see in Disneyland....The Village is a metaphor for the faux "middle class values" that the wealthy, insular, privileged, hypocritical political celebrities (and their hangers-on and wannabes) present to the nation.... DFHs [Dirty Fucking Hippies aka Progressives] are definitely not welcome ;)

Whatever their political leanings, the Villagers are characterized by a personal conservatism borne of their desire to maintain their influence and prerogatives, to continue to be power-players and hobnob with other Villagers of power and influence. Public policy be damned. Or perhaps I should say, they see public policy not as something to be crafted rationally to serve the common good but rather as something that can best be worked out when the elites who meet and socialize together sit down at the table and reach some consensus. Their own personal relationships matter; practical solutions for hundreds of millions of Americans are secondary. In an act of breathtaking vanity and delusion, they rationalize the former as the best way to achieve the latter.

These people are why our national government – notwithstanding the recent most welcome change in power – is so deeply out of touch with and irrelevant to the complex, urban, diverse, technology driven, increasingly progressive, rapidly changing nation America has become. Before real change can come to our government, the permanent bipartisan Village class must be swept away.

Virginia Lost A Really Good Civil Procedure and Legislation Teacher

The Employment Non-Discrimination Act (ENDA) is a bill currently before Congress that would prevent discrimination on the basis of sexual orientation and gender identity in the workplace. Such protections are long overdue. No one should lose their job merely because they are gay.

My former professor, Bill Eskridge, testified in favor of the bill and reflected on his own experience of workplace discrimination.



As Eskridge indicates, in addition to being morally wrong, workplace discrimination is a waste of human talent. Though the University of Virginia denied him tenure, in part it seems because of his sexual orientation, Eskridge is now more cited in American law reviews than any professor in the history of the University of Virginia.

Justice is Dead

The appropriately named Judge William Wayne Justice died the other day. He was a giant.

There aren't many true liberals left in the contemporary federal judiciary. Conservative doctrine has been so dominant in the legal academy and the courts over the past few decades that judges that we today describe as liberal -- like Sotomayor, Breyer and Ginsberg – would have been seen as cautious moderates just a generation ago.

Judge Justice's obituary in the Times reminds us of what a real liberal sounds and acts like:

Judge William Wayne Justice of Federal District Court, who ruled on ground-breaking class-action suits that compelled Texas to integrate schools, reform prisons, educate illegal immigrants and revamp many other policies, died Tuesday in Austin. He was 89.

Judge Justice was a small-town lawyer active in Democratic Party politics when President Lyndon B. Johnson appointed him to the federal bench of the Eastern District of Texas in 1968. Sitting in Tyler, Tex., he made rulings over three decades in a series of major cases that caused him to be called the most powerful man in Texas by those who agreed with his largely liberal decisions and the most hated by those who differed.

In a 1998 column in The Fort Worth Star-Telegram, Molly Ivins made what she called the “painfully obvious point” that Judge Justice lived up to his name, saying he “brought the United States Constitution to Texas.”...

If Judge Justice seemed high-handed, it was partly because he believed that the founding fathers wanted judges to seize and command the higher ground. Perhaps not surprisingly, people reacted with hate mail, death threats, ostracism and bumper stickers demanding his impeachment.

“The plain fact of the matter is that the majority is sometimes wrong,” Judge Justice declared in an interview with The New York Times in 1982.

Frank R. Kemerer, who wrote “William Wayne Justice: A Judicial Biography” (1991), said in an interview on Wednesday, “He had a transcendent value, which was to advance human dignity and provide a measure of basic fairness.”

In many cases Judge Justice challenged official intransigence by applying the known law of the land, as he did in 1971 when he told school districts in East Texas to obey the law by integrating. Even 17 years after the United States Supreme Court ordered schools to be integrated, it was not unusual for students in all-black schools to have outhouses rather than indoor restrooms.

Other cases lacked precedent. In 1978, Judge Justice struck down a Texas law that let public school districts charge tuition for the children of illegal immigrants. When the ruling was upheld 5 to 4 by the Supreme Court in 1982, millions of children had the right to a free education.

“There was absolutely no case law on it,” Judge Justice said in an interview with The Star-Telegram in 1998. “I found no case, no statute that covered the point of law that I had to decide. So I guess I made my own little contribution.”

To many, the judge defined the concept of activist judge. In the early 1970s, he had his law clerks — many of them from top law schools like Harvard and Stanford — sift through hundreds of inmate letters complaining of cruel and unusual punishment in Texas prisons. He pulled out eight and consolidated them into a single action, then appointed a lawyer from the NAACP Legal Defense and Educational Fund, William Bennett Turner, to handle the case. He asked the federal Justice Department to join with the inmates as a friend of the court.

The state defended a prison system with two doctors for every 17,000 prisoners, where 2,000 inmates slept on the floor and where inmate trustees, known as building tenders, essentially ran the cell blocks through coercion. It contended that Texas in fact had the best penal system in the nation.

In 1980, after a trial that lasted nearly a year, Judge Justice ordered major changes in the state’s prison system. In 1987, he held the state in contempt because the promised progress had been so meager....

In 1973, he made a far-reaching decision to require Texas to repair “truly shocking conditions” in its juvenile detention system. Other important rulings included enforcing laws on integrating public housing and enforcing laws on bilingual education.

It's worth noting that this came at significant personal cost. In addition to death threats and calls for his impeachment, there were the more mundane and perhaps more painful injuries inflicted by his angry neighbors:

“I had a pretty good idea what I was getting into,” Judge Justice said in an interview with Texas Monthly in 2006. It is unclear whether his expectations included his wife’s being refused service by beauticians and carpenters refusing to work on his house in Tyler once they realized who owned it.

The Cost of War

Paige Bennethum says goodbye to her father, Army Reservist Staff Sgt. Brett Bennethum, as he prepares to deploy to Iraq.

Workplace Relationships

As Americans spend more and more time at work, work is increasingly becoming a place where people meet romantic and sexual partners.

There was a time – depicted quite vividly in teevee's MadMen – where the prototypical workplace liaison involved a powerful man using his power to coerce subordinate women into non-consensual (or otherwise highly coercive) workplace relationships. Thankfully during the 1980s and 1990s Americans developed a social awareness of the rampant problem of sexual harassment through events like the Clarence Thomas/Anita Hill hearings, the Bob Packwood affair, etc. In response, laws sprang up to punish wrongdoers and protect the victims of such harassment. And in turn, most workplaces now have sexual harassment policies designed to prevent sexual harassment and provide victims with a means of redress within the workplace. (The law has encouraged this by allowing employers to use such policies and their earnest implementation as a defense to lawsuits for money damages.) This transformation is a good and long overdue development.

In a context in which clear procedures are in place to protect victims of sexual harassment, other largely benign workplace relationships – truly consensual, non-coercive romantic and sexual relationships – can and do flourish. That's a good and natural thing. With people working long hours, often on matters that they care deeply about, one can only expect that the workplace would be a useful place to meet partners. So long as those relationships are truly mutual and do not disrupt the professionalism of the workplace they should be – and today largely are – tolerated generously. How many people do you know who met their life partners (or partners for a time) in the workplace?

Update: I see that Digby makes a similar point:

I am a big believer in sexual harassment laws and I know from personal experience that it's a difficult problem. But if [the cable teevee gasbags] are going to tell us now that any romantic or sexual relationships stemming from the workplace are harassment and therefore illegal, then I hope this country is ready to become a nation of monks and nuns. It is, after all, where most couples meet.

If it turns out that Letterman was coercing female employees into having sex with him, then I won't have any pity for him if he's sued. But the idea that anyone who has a romantic relationship with her boss is an unknowing victim is ridiculous. It infantilizes women and says they have no free will at all.

Every one of these people know bosses who have dated, had affairs, married their employees and vice versa. Many of them have done it themselves. The idea that they are shocked and dismayed by Letterman's revelation and "wondering" what the rules are is totally disingenuous.... Enough with the phony village moralizing, already.

World Leader

Kings College, London, has a new report on incarceration rates in 218 of the world's nation states (including a few dependent territories). A few interesting findings:

At 756 per 100,000 residents, the United States has the highest per capita incarceration rate in the world. Three-fifths of countries worldwide (including many modern first-world democracies), have incarceration rates below 150 per 100,000.

There are about 9.8 million people incarcerated worldwide. About 25% of those are incarcerated in the U.S., even though the U.S. represents only about 5% of the world's population.

Number of people incarcerated per 100,000 residents in selected nation states:

United States: 756

Russia: 629

Rwanda: 604

Cuba: 531

Georgia: 415

Kazakhstan: 378

South Africa: 335

Singapore: 267

Brazil: 227

Iran: 222

Jamaica: 174

Argentina: 154

United Kingdom: 153

Turkey: 142

Australia: 129

China: 119

Canada: 116

Bahrain: 95

Italy: 92

Germany: 89

Ireland: 76

Sweden: 74

Japan: 63

Iceland: 44

India: 33

Sierra Leone: 33

Nepal: 24

God bless America.

Last Words

Via capital defense weekly:

Stephen Moody, 52, strapped to the Texas death chamber gurney at Walls Unit in Huntsville, about 70 miles north of Houston, addressed his victim's mother and son as they watched through a window. "I was unable to respond to you in the courtroom," he said. "I can only ask that you have the peace that I do." After expressing love to his relatives and friends watching through an adjacent window, he said: "Warden, pull the trigger."

Revolution in Art

Saw this quote and thought it was interesting: "Revolution in art lies not in the will to destroy but in the revelation of what has already been destroyed."

Selective Enforcement

It's a sign of a sickness in society that we incarcerate individuals for an act that so many people so regularly perform. It turns us all into criminals. The only reason we tolerate it is that the law is only enforced on the others.

The tone is a little annoying, but this week's New York Magazine piece is useful. It explains why New York City is the marijuana arrest capital of the United States:

[p]ossession of 25 grams, or seven-eighths of an ounce...is not a crime in New York State and has not been since the passage of the Marijuana Reform Act of 1977, or 32 years ago.... There are exceptions, however. If the pot is “burning or open to public view,” then the 25-gram deal is off. It is this provision that has been the basis for the arrest outbreak, many civil libertarians contend.

The scenario of what happens on the street, as told to me by several arrestees, is remarkably similar. It goes like this: You’re black, or Spanish, or some white-boy fellow traveler with a cockeyed Bulls cap and falling-down pants. The cops come up to you, usually while you’re in a car, and ask you if you’re doing anything you shouldn’t. You say, “No, officer,” and they say, “You don’t have anything in your pocket you’re not supposed to have, do you, because if you do and I find it, it’ll be a lot worse for you.” It is at that point, because you are young, nervous, possibly simple, and ignorant of the law, you might comply and take the joint you’d been saving out of your pocket. Then,zam: Suddenly, your protection under the Marijuana Reform Act vanishes because the weed is now in “public view.” The handcuffs, the paddy wagon, and the aforementioned court date soon follow.

Aware of Our Own Hypocrisy

Well there you have it. A majority of Americans have come to realize the obvious -- that alcohol is more dangerous that marijuana. Makes it sorta hard to understand why we outlaw marijuana and legalize (and loosely regulate) alcohol.

Fifty-one percent (51%) of American adults say alcohol is more dangerous than marijuana, according to a new Rasmussen Reports national telephone survey. Just 19% disagree and say pot is worse. But 25% say both are equally dangerous. Just two percent (2%) say neither is dangerous.

Perhaps it's time to change the law.

(h/t) Sentencing Law and Policy

Meritocracy

In a post entitled "It's time to embrace American royalty," Glenn Greenwald comments on the news that George W. Bush's daughter, Jenna Hager Bush, has been hired by NBC's Today show:

We're obviously hungry to live with royal and aristocratic families so we should really just go ahead and formally declare it:

They should convene a panel for the next Meet the Press with Jenna Bush Hager, Luke Russert, Liz Cheney, Megan McCain and Jonah Goldberg, and they should have Chris Wallace moderate it. They can all bash affirmative action and talk about how vitally important it is that the U.S. remain a Great Meritocracy because it's really unfair for anything other than merit to determine position and employment. They can interview Lisa Murkowski, Evan Bayh, Jeb Bush, Bob Casey, Mark Pryor, Jay Rockefeller, Dan Lipinksi, and Harold Ford, Jr. about personal responsibility and the virtues of self-sufficiency. Bill Kristol, Tucker Carlson and John Podhoretz can provide moving commentary on how America is so special because all that matters is merit, not who you know or where you come from. There's a virtually endless list of politically well-placed guests equally qualified to talk on such matters....

[A]ll of the above-listed people are examples of America's Great Meritocracy, having achieved what they have solely on the basis of their talent, skill and hard work -- The American Way. By contrast, Sonia Sotomayor -- who grew up in a Puerto Rican family in Bronx housing projects; whose father had a third-grade education, did not speak English and died when she was 9; whose mother worked as a telephone operator and a nurse; and who then became valedictorian of her high school, summa cum laude at Princeton, a graduate of Yale Law School, and ultimately a Supreme Court Justice -- is someone who had a whole litany of unfair advantages handed to her and is the poster child for un-American, merit-less advancement. I just want to make sure that's clear.

Adding: An important step towards a more just society would be for our national dialogue to accept the idea that everyone benefits from all sorts of non-merited advantages both large and small and is burdened by all sorts of non-merited disadvantages both large and small (though some, of course, benefit a lot more than others). Any claim to meritocracy is fantasy. And that fact should enable rather than prevent us from getting down to the work of creating a more equal society.

Update: A few more thoughts on the subject that I found over at the Times' Opinionater Blog:

Adam Serwer at the American Prospect explains:

The right doesn’t mind privilege being retained, bywhatever means, within those groups that already have it, because it proves their theories about meritocracy. But when someone like Sonia Sotomayor goes from the South Bronx to Princeton valedictorian to the Supreme Court, it forces the question of how much people of privilege depend on their circumstances — their financial and social advantages — to succeed rather than their ability or intelligence. That’s uncomfortable for some people to think about, and it’s part of why Sonia Sotomayor provokes outrage over “merit,” while glaring examples of preferential treatment for the privileged do not.

Andrew Sullivan also responds to the "craven nepotism" in DC,

Late empires are known for several things: a self-obsessed, self-serving governing class, small over-reaching wars that bankrupt the Treasury, debt that balloons until retreat from global power becomes not a choice but a necessity, and a polity unable to address reasonably any of these questions — or how the increasing corruption of the media enables them all

Beginnings of A Movement?

Last week, Mexico decriminalized possession of drugs – including marijuana, cocaine and heroin – for personal use. As the Times reports, this week, Argentina's Supreme Court followed suit in a case which prohibits incarceration for marijuana possession and seems to rule unconstitutional incarceration for the private consumption of any drug.

The court embraced a simple, powerful libertarian approach to the issue: "Each individual adult is responsible for making decisions freely about their desired lifestyle without state interference.... Private conduct is allowed unless it constitutes a real danger or causes damage to property or the rights of others.'' The Court also urged the government to adopt a public health approach to drug use.

The Argentine President has expressed support for drug law reform in the past, saying, "I don't like that an addict is condemned as if he were a criminal." It's nearly impossible to imagine an American politician talking about drugs in a way that's similarly sane. And check out how Cabinet Chief Anibal Fernandez, responded to the decision: "[S]he declared that the ruling brings an end to 'the repressive politics invented by the Nixon administration'... and later adopted by Argentina's dictators, to imprison drug users as if they were major traffickers."

It's about time Latin American countries resist their ongoing conscription in America's War on Drugs.

Epitaph

Ted eulogizing Bobby back in 1968:

My brother need not be idealized, or enlarged in death beyond what he was in life; [he ought] to be remembered simply as a good and decent man, who saw wrong and tried to right it, saw suffering and tried to heal it, saw war and tried to stop it.

Those of us who loved him and who take him to his rest today, pray that what he was to us and what he wished for others will some day come to pass for all the world.

Patients not Criminals

Mexico takes an important step in the direction of a sane and humane drug policy: decriminalizing personal use.

Under siege by drug traffickers, Mexico took a bold and controversial step last week when it opted to no longer prosecute those carrying relatively small quantities of marijuana, cocaine, heroin and other drugs. Instead, people found with drugs for “personal and immediate use,” according to the law, will be referred to free treatment programs where they will be considered patients, not criminals....

The decriminalization effort, which many lawmakers endorsed with little enthusiasm, is intended to free up prison space for dangerous criminals and to better wean addicts away from drugs. It is not the only legislation put forward that would probably never have been considered were the country not in the midst of a bloody and seemingly endless drug war.

It's worth pointing out that the primary reason Mexico is "under siege" by drug traffickers is because of U.S. drug policy that allows demand to flourish even as it spends vast resources enforcing prohibitions against supply. Go figure that that would produce elaborate cartels in the country next door.

Life in the Ghetto

On the New York Times website, David Gonzalez has written a sensitive piece about his recollections of living and teaching and taking photographs in the South Bronx during the late 1970s. While I grew up a million miles away from the South Bronx socioeconomically, geographically, I grew up just a couple miles away. Gonzalez's piece reminds me a little of a city I once knew, a city that seems so distant today.

At a time when the South Bronx was thought of as the single worst ghetto in America, Gonzalez finds a neighborhood alive with culture. His is not a tale of hopelessness. It's also not a tale of residents who, despite the odds, fight to overcome their environment. By seeing the South Bronx's residents as human beings, free of any pre-digested sociological narrative, he finds a community rich with culture, where children play, neighbors sit on stoops, kids squeegee windshields, buildings crumble, and couples dance in the street. The affirmation that Gonzalez finds is not a transcending of conditions so much as it is a vitality within them. He reminds us that in the end, life in the ghetto is just life.

There's a four minute audio slideshow of Gonzalez's photographs with narration here. Really cool.

I saw kids in the middle of burned out lots acting like kids would anywhere else. And I photographed some of them... [The kids to whom I taught photography] just photographed their world. And even though they lived in this messed up neighborhood, they photographed utterly ordinary things: their parents at home, their kid sister sleeping, their friends playing in the streets. And it taught me to just look at that. And so I really didn't photograph a lot of the rubble if you will. I photographed the life that persisted in the middle of all of this. And it was a really important lesson that in this place written off as hopeless, I found people just moving on....

And I think having come from there and more importantly having gone back there, it's something to be proud of actually. And it's not pride in the sense that 'I survived this tough place.' It's the kind of pride that 'I'm still part of this place in a very essential way.'"

Fair and Balanced vs. Honest and Accurate

We're all familiar with the irony that Fox News has adopted the term "fair and balanced" to describe news coverage that is anything but. But the larger issue that deserves more attention is that "fair and balanced" shouldn't be the goal of a news organization at all. As Jed Lewison explains at Daily Kos:

"[t]he media shouldn't feel any obligation to treat the disinformation campaign [surrounding the current health care debate] as it were a serious attempt at discourse. There's nothing wrong with calling liars liars....

What's really happening here is that Fox's screwball view of journalistic integrity ("fair and balanced" instead of "honest and accurate") has infected too many minds. Even if Fox weren't an overtly partisan network, the implication of the idea that news stories should be "fair and balanced" is that the primary goal of a news story is to serve the interests of subjects of the news report. ("We'll be fair to both sides in this story.")

The problem with that is that news stories aren't about serving the needs of their subjects. News stories should serve the needs of the reader. When people read news stories, they want to find out the truth, whether or not that has anything to do with the interests of any of the sides in a particular debate. Journalism should not be about giving fair treatment to the subjects of news reports, journalism should be about uncovering the real story, whatever it might be. Fairness and balance have nothing to do with it. If one side is telling most of the lies, you can't be balanced (as in "both sides are lying...") in reporting that fact. You can only be accurate -- and that's all that reasonable people should ask.

Inducing Good Behavior

One definition of punishment is "a stimulus that reduces the immediately preceding behavior such that it's less likely to occur in the future."

(h/t: Balloon Juice)

A Commune With the City

The High Line opened earlier this month, an abandoned elevated railway turned park on the lower west side. It was built in the 1930s as a short line to service the manufacturing concerns in the area, including the cattle needs of the Meatpacking District. By the 1990s, as factories left the city and the neighborhood declined, it was derelict and slated for demolition. Rather than knock it down as a now-unsavory relic of a bygone area, a couple visionaries saw its potential as a greenway – a uniquely New York expression of the rails-to-trials movement.

The new High Line is an elevated urban promenade, the first portion of which runs from Gansevoort Street to 20th Street. It's a space to commune with nature, including plant species indigenous to Manhattan. It's an oasis of calm hovering above the hustle-bustle. It's also a place to commune with the city. By removing oneself from the life of the street, by changing one's perception – by surveying the city from a perch one story up – one can see the city with new eyes. Its magnificent architecture, garish commercialism, relentless energy, surprising quaintness, its natural beauty is revealed, as if to remind us of the possibility of being in gotham but not of it.

Homicidal Fantasies

The New York Times has completed an interesting analysis of all murders committed in New York City from 2003 through 2008. Article here. Database here.

The city averaged 54o murders per year for each of the years 2003-08, down from 2,262 murders per year in 1990. In other words the murder rate is down 75% from what it was less than 20 years ago. That's a pretty stunning transformation.

And here's one tidbit I though was especially interesting: "From 2003 to 2008, the number of women killed each year by strangers was in the single digits."

The crime-fear in American society, often hysterical in tone, centers around fantasies of stranger attack, especially stranger attacks on women. Yet in New York, our nation's largest city, home to 8 million inhabitants, fewer than 10 women are killed by strangers each year.

Osborne Thoughts

The U.S. Supreme Court delivered its opinion in District Attorney's Office v. Osborne today, rejecting, by a vote of 5-4, a prisoner's claim to post-conviction DNA testing. I have a personal connection with the case in that, along with several colleagues (and the help of a terrific law student), I filed the original lawsuit in U.S. District Court for the District of Alaska. Some thoughts about the opinion:

(1) It's important to be clear about what the Court says and what it doesn't say. The Court said that individuals have no federal constitutional right to post-conviction DNA testing. But that doesn't mean that individuals have no statutory right to post-conviction DNA testing. And indeed, 47 states have passed laws that allow defendants to obtain post-conviction DNA testing. Those statutes are not disturbed by today's ruling. To put it another way: the case asked whether states must provide access to post-conviction DNA testing. The Court said no. But states can still choose to provide access to that testing – and almost every state has chosen to do so.

(2) Today's opinion has very limited practical effect. In the three states that have no post-conviction DNA testing statute – Alaska, Oklahoma, and Massachusetts – it leaves defendants, like Osborne, with no clear path to post-conviction DNA testing. (Though in Massachusetts, defendants can often get testing with the consent of prosecutors or under the state's general postconviction law.) In the other 47 states, today's opinion will have almost no effect. A couple of those 47 states, like Alabama, have unusually narrow statutes that could potentially have been broadened by a ruling for Osborne, but generally speaking, in the 47 states with DNA statutes, today's opinion was of very little practical consequence.

(3) It's hard for me to see how the case could have come out any other way. While I don't like the decision, given the current composition of the Supreme Court, this decision had to be expected. In fact, I'm surprised it was as close as it was. On the current Court, not only the conservatives but also the ostensible liberals are often loathe to preserve – much less extend – the rights of criminal defendants. This is perhaps most true in the post-conviction context. Whether one views Osborne as asking the Court to create a new right (to post-conviction DNA testing) or merely to extend a right (of discovery) to a new context (post-conviction), one had to expect outright hostility from the four conservatives and deep skepticism from Kennedy and the four moderate-liberal justices.

(4) The record in the Osborne case made it a less-than-ideal vehicle through which to establish a new right to post-conviction DNA testing. Osborne actually had gotten a primitive form of DNA testing prior to trial. That testing was of limited probative value, but it nevertheless required Osborne to argue that he not only had the right to DNA testing, he had the right to additional DNA testing in a case where such testing had already been performed. Given the facts of his case, I believe Osborne deserves that additional testing – the pre-trial testing was not particularly discriminating and new testing could prove him innocent – but it would have been a lot easier to convince SCOTUS to create a new right to post-conviction DNA testing in a case where DNA testing had not already occurred. For those justices who fear the specter that defendants would use a federal constitutional right to seek additional (frivolous) DNA testing every time there is a small incremental change in DNA technology, Osborne's (legitimate) claim for additional testing gives them something to latch on to.

(5) In some ways what Osborne was asking for seems like common sense: the right to employ a uniquely probative new technology that has the power to prove him innocent. But in a legal sense what he was asking for was actually quite bold. He was asking the Supreme Court to extend the right of defendants to compel discovery -- a right which generally speaking exists pre-trial -- into the post-conviction context. This is no small thing. American courts tend to see trial as the stage in the legal process where factual investigation occurs and matters of fact get resolved. Appeals, including post-conviction proceedings, tend to focus on questions like was the trial fair? Were the defendant's rights respected? But appeals tend not to address questions like was the trial accurate? And did the jury reach the correct decision? With some exceptions, those latter types of questions are resolved at trial; after trial, courts are loathe to even inquire into the matter. Courts call this principle finality. The idea is that fact finding can't go on indefinitely, and in our legal system trial is where it best occurs – with live witnesses and in front of juries. After trial, generally speaking, one can challenge the procedure of the trial but not the substantive content of the evidence presented. Osborne was asking the Court to constitutionalize an exception to this widely accepted and, by many judges, enthusiastically embraced doctrine. From this perspective, what Osborne was asking doesn't seem quite so simple or obvious.

(6) Having said all that, finality is a beast that post-conviction defense lawyers need to confront head on. The principle is based in a reasonable idea: in a world of limited judicial resources, trials can't go on forever; each time a new fact arises in an old case, we can't impanel a new jury and have a whole new trial. At the same time, if there's anything the DNA cases have shown, it's that trials sometimes get it wrong, and those wrongs can sometimes be corrected.

Sometimes, for a variety of reasons, compelling evidence of innocence doesn't arise at trial; it only comes to light afterwards. New technologies like DNA testing come about. New witnesses emerge who had previously not come forward. New information about alternative suspects comes to light. Witnesses who lied at trial – to protect themselves or gain a benefit from prosecutors or for countless other reasons – may have pangs of conscience and only later be willing to come clean. Earlier scientific understandings, like hair microscopy, may come to be seen as invalid. Sometimes time distorts truth, but sometimes the truth can only emerge with time.

The criminal justice system makes mistakes. It always will. The "system," is just a collection of people – judges, juries, attorneys, defendants, etc. – and people are fallible. The question is, what are we as people going to do about those mistakes? Will we invoke finality as a shibboleth to shield us from our inevitable imperfections or will we have the courage honestly to confront them and correct them as best we can?

As defense lawyers we can't fruitfully assert that every new fact that emerges post-trial, no matter how minor, is grounds for a new trial. At the same time, we must forcefully assert that when important new facts do emerge, post-conviction courts must be open to that evidence and take it seriously. The Osborne ruling is a setback, but the fight for the right to introduce new evidence post-conviction will continue. The credibility of our legal system depends on it.

Interdependence

Barack Obama in Cairo today: 

For we have learned from recent experience that when a financial system weakens in one country, prosperity is hurt everywhere. When a new flu infects one human being, all are at risk. When one nation pursues a nuclear weapon, the risk of nuclear attack rises for all nations. When violent extremists operate in one stretch of mountains, people are endangered across an ocean. And when innocents in Bosnia and Darfur are slaughtered, that is a stain on our collective conscience. That is what it means to share this world in the 21st century. That is the responsibility we have to one another as human beings.

This is a difficult responsibility to embrace. For human history has often been a record of nations and tribes subjugating one another to serve their own interests. Yet in this new age, such attitudes are self-defeating. Given our interdependence, any world order that elevates one nation or group of people over another will inevitably fail. So whatever we think of the past, we must not be prisoners of it. Our problems must be dealt with through partnership; progress must be shared....

All of us share this world for but a brief moment in time. The question is whether we spend that time focused on what pushes us apart, or whether we commit ourselves to an effort – a sustained effort – to find common ground, to focus on the future we seek for our children, and to respect the dignity of all human beings....

It is easier to start wars than to end them. It is easier to blame others than to look inward; to see what is different about someone than to find the things we share. But we should choose the right path, not just the easy path. There is also one rule that lies at the heart of every religion – that we do unto others as we would have them do unto us. This truth transcends nations and peoples – a belief that isn't new; that isn't black or white or brown; that isn't Christian, or Muslim or Jew. It's a belief that pulsed in the cradle of civilization, and that still beats in the heart of billions. It's a faith in other people, and it's what brought me here today.

We have the power to make the world we seek, but only if we have the courage to make a new beginning....

Systems Analysis

Our national discourse is so stupid. 

Jihad

City on A Hill

For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world. We shall open the mouths of enemies to speak evil of the ways of God, and all professors for God's sake. We shall shame the faces of many of God's worthy servants, and cause their prayers to be turned into curses upon us till we be consumed out of the good land whither we are going. – John Winthrop, A Model of Christian Charity

Dr. George Tiller, one of the few abortion providers in the state of Kansas, was shot and killed today in Wichita while attending services at the Reformation Lutheran Church. Tiller had long been the focus of anti-abortion groups: In 1991 he was the object of a summer-long protest; he was shot in both arms by a protester in 1993; in 1985 his clinic was bombed. More from the A.P. here.

Police have apprehended a suspect, Scott Roeder of Merriam Kansas, a member of Operation Rescue with a past link to the Montana Freeman militia group. Back in 2007, someone named Scott Roeder posted this on an Operation Rescue website called Charge Tiller:

It seems as though what is happening in Kansas could be compared to the "lawlessness" which is spoken of in the Bible. Tiller is the concentration camp "Mengele" of our day and needs to be stopped before he and those who protect him bring judgement upon our nation.

Does the United States really need to have some special relationship with God? Isn't it enough simply to be a nation among nations?

Fidelity

The California Constitution is an inane instrument. Through the initiative process, it allows the democratic populace to strip disfavored minorities of fundamental rights on the basis of a mere majority vote at the ballot box. In that sense it can hardly be said to be a constitution at all, as part of what distinguishes constitutions from mere law is that constitutions are generally hard to change – mere majority votes generally do not suffice – except in California. 

Proposition 8 was upheld today, as expected. The California Supreme Court said that a majority of Californians legally amended the state constitution last November 4th to outlaw same-sex marriages. The court also said that same sex couples married prior to Proposition 8 were not effected by the proposition and are still legally married.

What the people can do, the people can undo. It's time to launch a political movement to again amend the California Constitution to repeal Prop 8. This is an opportunity for equality-loving Californians to educate their fellow citizens about the issue of same-sex marriage. And then in 2010 it'll be back to the ballot box to set things right. 

And hopefully in the long run, Californians will change the process for amending their state constitution. Amendment by initiative is a horrible idea. No mere majority should hold such a power. 

Contribute to the effort here.

"Endemic"

How the Catholic Church thinks it has any standing to lecture the rest of us about sexual morality is beyond me. 

Tens of thousands of Irish children were regularly sexually and physically abused by nuns, priests and others over a period of decades in hundreds of residential institutions that housed the poor, the vulnerable and the unwanted, according to a report released in Dublin on Wednesday. “A climate of fear, created by pervasive, excessive and arbitrary punishment, permeated most of the institutions and all those run for boys,” the report said, adding that sexual abuse was “endemic” in boys’ institutions....

[T]he Commission to Inquire Into Child Abuse, exposes for the first time the breathtaking magnitude of the problem, and shows how an entire establishment in an overwhelmingly Catholic country seemed to collude in perpetuating a cruel and sadistic system.... Speaking of sexual abuse, the report said that sometimes the abusers were moved to other facilities where they could prey on other children. “At worst, the child was blamed and seen as corrupted by the sexual activity, and was punished severely.”

Condoms are bad. Gay sex is bad. Sex out of wedlock is bad. But raping little children is no big deal. Someone should tell these people to shut the fuck up. 

Toughness, Fear and Security

Glenn Greenwald distills the inane politics of national security to its essence: 

The "debate" over all the bad and scary things that will happen if Obama closes Guantanamo and we then incarcerate those detainees in American prisons... perfectly illustrates the steps that typically lead to America's National Security policies:

(1) Right-wing super-tough-guy warriors project some frightened, adolescent, neurotic fantasy onto the world -- either because they are really petrified by it or because they want others to be....

(2) Rather than scoff at the inane fear-mongering or point out simple facts to reveal its idiocy, Democratic "leaders" such as Harry Reid echo the right-wing fears in order to prove how Serious and Tough they are -- in our political debates, the more frightened one is, the more Serious and Tough one is....

(3) "Journalists" who are capable of nothing other than mindlessly reciting what they hear then write articles depicting the Right's frightened neurosis as a Serious argument, and then overnight, a consensus emerges: Democrats are in big trouble politically unless they show that they, too, are as deeply frightened as the Right is.

It's a long piece, but well worth reading. 

"I was there, but... I didn't kill anybody."

The Times reports:

At 12:01 a.m. Wednesday, Dennis J. Skillicorn is to be executed for his role in the murder of Richard Drummond, a businessman who had offered help to Mr. Skillicorn and two others when he saw their car broken down on the side of a road one night in August 1994....[W]hile he participated in robbing Mr. Drummond and was convicted of murder, another man (now also awaiting execution) was the one who fired the gun that killed Mr. Drummond....

“He is not the one who actually killed the person, and that just says to me: ‘Whoa! Let’s take a step back,’ ” said State Representative Steven Tilley, the Republican leader [of the Missouri House of Representatives]. “Look, I’m not soft on crime, but we can’t redo this once we’ve executed this person"....

[Mr. Skillicorn] said he was sorry for his drug-addled behavior of years past, but that he considered his death sentence arbitrary in a way, and said that he was not the worst of the worst. “I was there,” he said, “But in my case, I didn’t kill anybody."

Some might be surprised that this situation – the non-triggerman receiving a death sentence even though he didn't kill the victim directly – is permissible. This is true even though in many cases the non-triggerman's culpability is limited.

In fact, it's not at all unusual for the less culpable party to murder to receive a harsher sentence (though in Skillicorn's case both he and the triggerman received death). The factor that often most influences a defendant's relative punishment for a multiple-perp murder is not the relative culpability or individual characteristics of the defendant, but whether that defendant cooperates with prosecutors and testifies for the state.  

Wanted

The following individuals for torture and conspiracy to commit torture.

The Story of Stuff

Everybody should go to this website watch this. Here's a little teaser, The Story of Stuff, Chapter 5: Consumption:

Last Words

On Thursday, the state of Alabama executed Willie McNair for the 1990 murder of Ella Foy Riley, a woman for whom he did yard work.

According to the A.P., McNair declined to make a final statement.

After the excution, one of the victim's sons, Wayne Riley, issued a statement saying, "I ask that you pray for my family in the coming days and for the Willie McNair family, too, for they... have suffered for what he has done."

Last Words

A man named Donald Lee Gilson was executed by the state of Oklahoma on Thursday for the 1995 murder of his girlfriend's eight-year-old son, Shane Coffman. Gilson's girlfriend, Bertha Jean Coffman, was also convicted of the murder; she reached a deal with prosecutors and received a life sentence, rather than death, in return for her testimony against Gilson. Jurors were not informed of the deal.

The Oklahoma Pardon and Parole Board recommended that Glison's sentence be commuted to life without parole based on evidence that the victim's mother, not Gilson, was primarily responsible for her son's death. Despite the Board's recommendation, Gov. Brad Henry (D) denied the request for clemency. According to the A.P., Gilson's last words were:

"I'm an innocent man but ... I get to go to heaven and I'll see Shane tonight."

One Man And One Woman

The desire of some to define marriage as a relationship between "one man and one woman" is problematic for all sorts of reasons. On a concrete level, even in states that prohibit same-sex marriage, policing the boundaries of such a rule is all but impossible in a world where gender and sexual identity are so fluid. 

Once one accepts that gender and sexual identity aren't binary categories, the whole "one man and one woman" marriage regime is revealed as fiction. As this male to female transsexual writes on the Times op-ed page: 

Deirdre Finney and I were wed in 1988 at the National Cathedral in Washington. In 2000, I started the long and complex process of changing from male to female. Deedie stood by me, deciding that her life was better with me than without me.... I’ve been legally female since 2002, although the definition of what makes someone “legally” male or female is part of what makes this issue so unwieldy. How do we define legal gender? By chromosomes? By genitalia? By spirit? By whether one asks directions when lost?... Gender involves a lot of gray area. And efforts to legislate a binary truth upon the wide spectrum of gender have proven only how elusive sexual identity can be....

A 1999 ruling in San Antonio, in Littleton v. Prange, determined that marriage could be only between people with different chromosomes. The result, of course, was that lesbian couples in that jurisdiction were then allowed to wed as long as one member of the couple had a Y chromosome, which is the case with both transgendered male-to-females and people born with conditions like androgen insensitivity syndrome. This ruling made Texas, paradoxically, one of the first states in which gay marriage was legal.

A lawyer for the transgendered plaintiff in the Littleton case noted the absurdity of the country’s gender laws as they pertain to marriage: “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

Legal scholars can (and have) devoted themselves to the ultimately frustrating task of defining “male” and “female” as entities fixed and unmoving. A better use of their time, however, might be to focus on accepting the elusiveness of gender — and to celebrate it. 

The man/woman binary, just like the black/white binary of Jim Crow, is based on a fiction. Accepting it requires erasing certain people who don't fit into either category and/or who arguably fit into both. Highlighting the (admittedly exceptional) cases of people who fit into neither category helps to demonstrate that the system that places so much emphasis on those categories is not only not natural and unchangeable, but not even an accurate description of the world.

Rightward Shift

The politics in Florida have been turned upside down. Gov. Crist had been a moderating influence on Florida Republican politics. He even made common cause with Democrats on some issues, something he didn't need to do in a state with huge Republican majorities in both houses of the legislature. For example he championed the Obama stimulus and limited felon re-franchisement; the latter is an issue that flat-out hurts Republicans. But now with Crist running for the Republican nomination for Senate against a young, attractive, right-wing Cuban American, Club for Growth-backed Republican in a closed primary, Crist surely will tack to the right. He goes from being a likely ally on common sense criminal justice reform issues to being a likely opponent. 

Kos' analysis of the race here and here.

Distance Travelled

I don't know much about her, but this article about Judge Diane Wood of the 7th Circuit reinforces my sense that she would make an excellent Supreme Court judge – an unapologetic liberal voice on an ideological, far-right Court. 

The article reminds just how recently women were all but excluded from the legal academy: 

When [Wood]... began teaching at the University of Chicago law school in 1981, she was the only woman on the faculty, and she was eight months pregnant. She had three children in five years. Prof. Lea Brilmayer of Yale Law School, who had preceded her as the only woman at Chicago, said the school in those days was “distinctly inhospitable” to women on the faculty.

Lea Brilmayer was my first year contracts professor. Brilliant, hilarious, and more than a little odd. Like Wood, when she started teaching at Chicago, she was the only woman on the faculty. The only woman on the faculty. While there's still a long way to go, it's worth pausing for a moment to appreciate just how recently legal academia was an almost exclusively male province. 

Recession Haiku

A little gem via Calculated Risk, one of my favorite blogs for info on the economic crisis:

Results from "Stress Test"

Bogus Kabuki theatre.

Truth remains hidden.

Tortured Phrasing

Awhile back I noted that the New York Times still refused to call the "enhanced interrogation techniques" of the Bush Administration "torture" even though they clearly are torture as defined by U.S. law, international law, past American war crimes prosecutions, etc.

Today Andrew Sullivan – a Burkean conservative who has been outspoken in his opposition to the Bush torture regime – notes that the New York Times has no problem using the word "torture" when other countries do it. How ridiculously timid the Times has been over and over again the past eight years in the face of massive government criminality, as though the purpose of a free press is to do little more than repeat government propaganda.

Sullivan's initial post is here. His follow up is here.

UPDATE: Glenn Greenwald picks it up as well:

There's been a major editorial breach at The New York Times today...

[S]houldn't this be called "torture" rather than torture -- or "harsh tactics some critics decry as torture"? Why are the much less brutal methods used by the Chinese on Fischer called torture by the NYT, whereas much harsher methods used by Americans do not merit that term? Here we find what is clearly the single most predominant fact shaping our political and media discourse: everything is different, and better, when we do it.

WWJD?

One of the least convincing arguments for the usefulness of religion is that it helps us humans navigate the moral landscape. That these people use religion to assert an oversized influence over our public morality is offensive.

Juveniles Serving Life

The Supreme Court granted cert today in two cases challenging the constitutionality of a sentence of life without parole for crimes committed as juveniles.

One of the defendants, Joe Sullivan, was convicted of committing a rape in Pensacola, FL when he was 13 and sentenced to life without parole. Sullivan, now 33, claims that that punishment violates the cruel and unusual punishment clause of the Eighth Amendment. Sullivan also claims that he is innocent, though the Supreme Court will not examine that issue.

The Supreme Court rarely examines the applicability of the Eighth Amendment to punishments other than death, so the cert grants are an exciting development. The cases potentially raise two overlapping issues: First, how old must one be to receive a sentence of life without parole? And second, is the crime of which one was convicted a relevant factor – is life without parole an appropriate punishment for juveniles who commit some crimes (like murder), but not other crimes (like rape)?

The cases are Sullivan v. Florida and Graham v. Florida. They likely will be heard next fall.

Northeastern Republicans

Arlen Specter's switch to the Democrats provides a good opportunity to examine the state of the Republican party in New England and the Mid-Atlantic states. 

Members of the House of Representatives, New England and Mid-Atlantic, by state: 

Maine: Dem-2, Rep-0

New Hampshire: Dem-2, Rep–0

Vermont: Dem-1, Rep-0

Massachusetts: Dem-10, Rep-0

Rhode Island: Dem-2, Rep-0

Connecticut: Dem-5, Rep-0

New York: Dem-26, Rep-3

New Jersey: Dem-8, Rep-5

Pennsylvania: Dem-12, Rep-7

Maryland: Dem-6, Rep-1

Delaware: Dem-0, Rep-1

Totals for the region are Democrats-74, Republicans-17. And I would expect the Republican number to shrink still further if Democrats control the 2010 redistricting in New York and New Jersey, as it looks like they will, and after longtime Republican incumbents like Peter King (NY) and Mike Castle (DE) retire from their increasingly Democratic districts. 

In those same eleven states, the Senate picture is even bleaker for the Republicans. Now that Specter has switched, they have only three senators – Judd Gregg (NH) who does not plan to run for reelection in 2010, and Susan Collins (ME) and Olympia Snowe (ME). Snowe may follow Spector and switch parties at some point. As the most moderate Republican Senator, she may feel unwelcome in a rump GOP increasingly hostile to moderates. Current Senate totals for the region: Democrats-19, Republicans-3. (Note: Democratic Senate total includes independent senators Bernie Sanders (VT) and Joe Lieberman (CT) both of whom caucus with the Democrats. Ideologically Sanders is at the leftward edge of the party, Lieberman is on the right.)

Souter Retirement

While many have speculated that Justice Stevens, age 89, would be the first Supreme Court retirement of Obama's term, those with most intimate knowledge of the Court have long said that Souter was disillusioned with D.C. and the Court and wanted to return to his quiet life in New Hampshire. According to the Times, this term will be Souter's last.

In 2007, Justice Stevens said that since Richard Nixon appointed Lewis Powell to the Court in 1971, "[e]very judge who’s been appointed...has been more conservative than his or her predecessor." Here's the list:

1971 Lewis Powell (Nixon) replaced Hugo Black (FDR)
1972 William Rehnquist (Nixon) replaced John Marshall Harlan II (Eisenhower)
1975 John Paul Stevens (Ford) replaced William O. Douglas (FDR)
1981 Sandra Day O'Connor (Reagan) replaced Potter Stewart (Eisenhower)
1986 Antonin Scalia (Reagan) replaced Warren Burger (Nixon)
1988 Anthony Kennedy (Reagan) replaced Lewis Powell (Nixon)
1990 David Souter (Bush I) replaced William Brennan (Eisenhower)
1991 Clarence Thomas (Bush I) replaced Thurgood Marshall (LBJ)
1993 Ruth Bader Ginsberg (Clinton) replaced Byron White (JFK)
1994 Stephen Breyer (Clinton) replaced Harry Blackmun (Nixon)
2005 John Roberts (Bush II) replaced William Rehnquist (Nixon)
2006 Samuel Alito (Bush II) replaced Sandra Day O'Connor (Reagan)

This pattern has moved the Court far, far to the right of where it was when Stevens first came to the Court 30+ years ago. Seven of the nine current justices were appointed by Republicans, including the Court's two most liberal members, Justice Stevens and Justice Souter. Even Clinton's two appointees were more conservative than their predecessors. For example, Justice Breyer, a liberal on the current Court, is far less liberal than his predecessor Justice Blackmun, a Nixon appointee. Perhaps the most dramatic shift to the right was when George H.W. Bush appointed arch-conservative Clarence Thomas to replace civil rights icon Thurgood Marshall.

In any event, Souter's retirement at a time when the Democrats control the Senate would give President Obama a chance to interrupt this longstanding rightward shift. But given the current state of the judiciary – in which even Democratic appointees tend largely to accept conservative judicial philosophies, the liberal "bench" isn't very deep. I hope Obama finds a replacement at least as liberal as Souter.

The T-Word

At his press conference last night President Obama responded to a question about Bush Administration interrogation policies and whether those policies sanctioned torture. Obama said:

"What I've said – and I will repeat – is that waterboarding violates our ideals and our values. I do believe that it is torture. I don't think that's just my opinion; that's the opinion of many who've examined the topic.... I believe that waterboarding was torture."

This seems like an important development. As we now know from Justice Department memos, the Bush administration sanctioned waterboarding. If the Obama administration believes that waterboarding is torture, that would seem to obligate – not allow but obligate – the administration to investigate and prosecute. As this post by Glenn Greenwald explains, the Convention on Torture is American domestic law, and it requires state parties like the United States to investigate and prosecute torture that occurs within their borders.

Of course it's the Attorney General, not the President, that decides whether to bring charges for violations of federal law. But unless Eric Holder disagrees with the President about waterboarding being torture, it would seem that – whatever Obama's personal predictions about "moving forward" and not "looking back" – Holder doesn't really have much of a choice. He can investigate and prosecute or he can himself become a criminal. And when I say that, that's not a political statement, that's the law.

Surely Obama knows this. It makes me wonder whether he really wants this issue to go away. If he did, he would probably have avoided using the t-word – because that word has all sorts of legal implications.

Coming Out

It was nice when Obama mentioned us in his inaugural along with Christians, Jews, Muslims and Hindus. We're here and we're nonbelievers. Get used to it.

More than ever, America’s atheists are linking up and speaking out.... They are connecting on the Internet, holding meet-ups in bars, advertising on billboards and buses, volunteering at food pantries and picking up roadside trash, earning atheist groups recognition on adopt-a-highway signs. They liken their strategy to that of the gay-rights movement, which lifted off when closeted members of a scorned minority decided to go public....

Polls show that the ranks of atheists are growing. The American Religious Identification Survey, a major study released last month, found that those who claimed “no religion” were the only demographic group that grew in all 50 states in the last 18 years. Nationally, the “nones” in the population nearly doubled, to 15 percent in 2008 from 8 percent in 1990.

Legal and Illegal Killing

One abolitionist's testimonial:

(h/t Capital Defense Weekly)

Borrowed Time

One week left for Chrysler to work out a deal to avoid bankruptcy. If Chrysler does seek bankruptcy protection, it'll be interesting to see how the market, the media and the Washington political class responds to the demise of one of the "Big Three" American automakers.

The Truth Will Out?

It feels like the release of the torture memos may have created a new interest in exploring the war crimes that were committed in our name.

Over at Hullabaloo, dday says:

I don't think you can debate whether or not to have an investigation on the Bush torture regime anymore, because the investigation is happening.

The press, finally, seems to be digging in. The Washington Post reports:

Condoleezza Rice, John D. Ashcroft and at least 10 other top Bush officials reviewed and approved as early as the summer of 2002 the CIA's use of harsh interrogation methods on detainees at secret prisons, including waterboarding that Attorney General Eric H. Holder Jr. has described as illegal torture, according to a detailed timeline furnished by Holder to the Senate Intelligence Committee....

Rice gave a key early approval, when, as Bush's national security adviser, she met on July 17, 2002, with the CIA's then-director, George J. Tenet, and "advised that the CIA could proceed with its proposed interrogation of Abu Zubaydah," subject to approval by the Justice Department, according to the timeline. Rice and four other White House officials had been briefed two months earlier on "alternative interrogation methods, including waterboarding," it states. Waterboarding is a technique that simulates drowning.

Note that this occurred prior to the Bybee memo which gave legal cover to the torture.

Dday concludes:

It's clear the President doesn't want the responsibility for future investigations. He apparently quashed the idea of a Presidential-level Torture Commission. But he cannot stop the wheels now in motion. Congress will have their crack at an investigation, and the media will return to the issue. The Attorney General will have to make his own independent judgment. And the truth may yet out.

I hope so.

Shrinkage

This strikes me as an interesting idea. Obviously it's not a policy that a city should adopt lightly – it will involve substantial displacement – but for cities like Flint that have undergone massive population declines over a period of decades, demolishing neighborhoods and condensing the population may actually be the least miserable option. Higher density will make the city easier and cheaper to manage, and the negative externalities of derelict spaces will be eliminated.

Dozens of proposals have been floated over the years to slow this city’s endless decline. Now another idea is gaining support: speed it up. Instead of waiting for houses to become abandoned and then pulling them down, local leaders are talking about demolishing entire blocks and even whole neighborhoods.

The population would be condensed into a few viable areas. So would stores and services. A city built to manufacture cars would be returned in large measure to the forest primeval. “Decline in Flint is like gravity, a fact of life,” said Dan Kildee, the Genesee County treasurer and chief spokesman for the movement to shrink Flint. “We need to control it instead of letting it control us.”...

“A lot of people remember the past, when we were a successful city that others looked to as a model, and they hope. But you can’t base government policy on hope,” said Jim Ananich, president of the Flint City Council. “We have to do something drastic.”...

Nothing will happen immediately, but Flint has begun updating its master plan, a complicated task last done in 1965. Then it was a prosperous city of 200,000 looking to grow to 350,000. It now has 110,000 people, about a third of whom live in poverty....

But what about the people who do live here and might want their sidewalk fixed rather than removed? “Not everyone’s going to win,” he said. “But now, everyone’s losing.”

On many streets, the weekly garbage pickup finds only one bag of trash. If those stops could be eliminated, Mr. Kildee said, the city could save $100,000 a year — one of many savings that shrinkage could bring....

“If it’s going to look abandoned, let it be clean and green,” he said. “Create the new Flint forest — something people will choose to live near, rather than something that symbolizes failure.”

Last Words

A man named Jimmy Lee Dill was executed last week by the state of Alabama for the 1988 murder of Leon Shaw during a cocaine-related robbery. According to the A.P., his last words were:

"I just hope that God's will be done and everybody find the peace that they need. I'm good."

(h/t CapitalDefenseWeekly)

Veterans for Peace

Courtesy of Sentencing Law and Policy Blog, the former president of Columbia – a veteran of the so-called War on Drugs – urges the U.S. to decriminalize:

[E]nforcements efforts are important, but when it comes to diluting the demand for drugs, the U.S. is missing the point, says the former President of Colombia, César Gaviria, in an exclusive interview with The Daily Beast. A central player in the 1990s drug wars, Gaviria was the leader of a country that supplied the bulk of the planet’s cocaine. Now, he believes the best way to break the world’s thirst for drugs is to decriminalize them — not just the “soft” ones, but all of them....

Gaviria has lived the drug war first-hand, and says fighting it was “a very frustrating experience.” He believes “it is a failure because there are hundreds of thousands of people jailed, while consumption remains basically unchanged in the U.S. and is growing significantly in Europe.” He also points out that it has been “a source of indiscriminate violence and corruption in Latin America, and is weakening our democratic institutions.”

For the 62-year-old Gaviria, the former Secretary General of the Organization of American States, to call for such a radical change as decriminalization is groundbreaking. As president of Colombia from 1990 to 1994, he battled the cartels during some of that country’s most violent years. He led the crackdown that would ultimately bring down the powerful Medellín Cartel and its infamous leader, Pablo Escobar. “The fight against the drug cartels is unavoidable,” Gaviria says. “If you don’t do it, they become too powerful and may even pose a military threat, as we saw in Colombia. But that does not mean that such efforts reduce the flow of drugs.”