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.