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