Tuesday, July 28, 2015

Against My Better Hopes

I was talking with another lawyer about an appeal someone might be filing.  He thought it surprising that instead of rooting for a defense win, the criminal defense bar might actually be hoping that the prosecutor prevailed.  On the particular facts of the case, it would make better law.

No big deal, I said.  It's the sort of thing that happens more than you'd imagine.  I want to win the case for this client, but on the peculiar facts, the government's argument would do more good for the defense bar.

A variation involves getting a case into the Supreme Court - Ohio's, the U.S., or maybe the high court of your state.  Any court that gets to decide whether it will hear the case.  Consider:  

The supreme court hasn't ruled on an issue, but we've lost in an intermediate appellate court.  It's in the client's interest to get heard by the high court.  After all, whatever the odds, we might win and he'd get some relief (a new trial, a lesser sentence, sent home with an apology, whatever).  On the other hand, the court could take in the case and turn bad local law into bad statewide/nationwide law. 

Not a happy prospect.  But we do it anyway.  Because whatever we might wish to see happen, we don't represent the cause.  We represent the client.

And so, Richard Glossip, John Grant, and Benjamin Cole.  And the problem of counting to five.

Bring us a case, said Stephen Breyer joined by Ruth Bader Ginsburg.  Call the question.  It's time, once again, to ask whether the death penalty is unconstitutional for all these reasons.  

And he laid them out, those reasons he and RBG had, for 40 pages in a dissent from the decision to allow Oklahoma to kill Messers Glossip, Grant, and Cole using a mix of drugs including midazolam. If it were so inclined. 

It's clear that the two of them would vote, if they had a clear opportunity, to say that the death penalty is unconstitutional.  It's a fair assumption that the Generalissimo and the empathetic Latina would join them.  And then?

I spent a few days earlier this month with a couple of hundred death penalty lawyers.  Many of the top capital defense lawyers in the country were there.  And there was much talk about that fifth vote. 

It's Anthony Kennedy, of course, if it's anyone.  Lots of folks are ready to trust him.  As one smart, thoughtful, knowledgeable guy explained, neither Breyer nor especially Ginsburg is so naive as to call for a frontal assault on the death penalty without being damn sure that they'd win.

To which many of the others present, said
Maybe.  But maybe not.
And it's a hell of a risk to take.  

But the world is complicated.  And while the capital defense bar scrambles and tries to decide and works at putting together a strategy, the court in Oklahoma set dates for Richard Glossip, John Grant, and Benjamin Cole. On Friday, they filed a petition for rehearing.  They made this pitch.
The Court Should Grant Rehearing To Consider Whether The Death Penalty Is Unconstitutional Per Se. 
Which is what the lawyers had to do for their clients.  And what I imagine the State of Oklahoma will either oppose or ignore in the hope it goes away so they can get on with the killin'.  But what in their heart of hearts at least some in the prosecutorial, kill-'em-all community will wish the Court would take in.  To drive another nail into the abolitionist position.  Here's Bill Otis immediately after Glossip was decided.
  1. Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence. For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.
  2. If either of President Obama's appointees were inclined to outlaw capital punishment per se, now was the time to go on record by signing on to at least some part of Justice Breyer's dissent (with Justice Ginsburg). Neither did. It would thus appear that there are seven solid votes against the abolitionist position, including the five youngest Justices.
I'm not sure Bill's right about the conclusions he draws from any of that.  In fact, I think he's wrong on 2. But on 1?  I don't want to find out.

And so, I - along with many other folks who oppose the death penalty and believe that it really is unconstitutional - find myself rooting against Glossip, Grant, and Cole.  Do I want them to be killed? 


Do I want the folks in Washington to take up their request - which may be their only hope?


Damn.  This is fucked up.

Monday, July 27, 2015

Please, No More Laws - UPDATED

Over at Fault Lines today, I expect them to put up a post of mine (I don't do the actual posting there) about the federal prosecution of Dylan Roof for the hate crime of killing people at the Emanuel African Methodist Episcopal Church in Charleston, S.C. after the state has already indicted Roof the underlying crime of killing people at the Emanuel African Methodist Episcopal Church in Charleston, S.C.  Like Scott Greenfield's post at Simple Justice, it's a response to fellow Fault Liner Christian Farias who thinks it's a Jim Dandy idea for the feds to go after Roof because he deserves it.

In this morning's Times, Harpreet Singh Saini writes about how important hate crime laws and prosecutions are.  He isn't writing from theory.
This is not a hypothetical situation. Three years ago next month, a white supremacist walked into the Oak Creek gurdwara, a Sikh temple, and fatally shot my mother, Paramjit Kaur Saini, and five other worshipers.
I was 18 and just about to start college. My mother never got to see me off.
It was a horrible crime.  It's a horrible story.  

The governments (federal and state) need to track hate crimes, he says.  And they need to prosecute people for them.  Because they're terrible things.  And they provide especially harsh penalties for people who commit horrible crimes for bad reasons (as if there were good ones).  Of course, those crimes are already being tracked, as are groups that encourage them.
Research by the Southern Poverty Law Center has found that South Carolina alone is home to six neo-Confederate groups, four white nationalist organizations, two factions of the Ku Klux Klan and three neo-Nazi groups. 
And so, well, that's where it gets hazy.  Here's the next (and last) sentence of Saini's paragraph I just quoted.
It is only a matter of time before a deranged individual or group influenced by their creed of hate strikes again.
Which is surely true.  And which tracking, whether by SPLC or the feds or the state of South Carolina won't change.

Ah, but surely there's deterrence.
This is an opportunity for South Carolina to lead, and the other four states [that don't have hate crime laws] to follow, in enacting laws that could help to deter another tragedy like the ones in Oak Creek and Charleston. An act of hate should always be counted and we must have laws in every state to protect Americans from these heinous acts of violence.
Really?  A law against hate crimes will deter, will protect against "a deranged individual or group"? 

Sure, because one thing about people who are deranged and act on their mental illness is that they do careful cost-benefit analyses first.  It's one reason why people don't commit crimes for bad reasons in the other 46 states.  You know, the states like 
New York, where in 2013 alone (the most recent year for which data is available), state prosecutors reported 149 hate crime convictions.
Saini's Op Ed is titled "There Ought To Be a Law Against Hate."  The title was probably provided by some editor at the Times, so there's no point in blaming Saini for that particular silliness, but it does point to the problem.

You can't stop hate - or any other emotion/attitude - by passing a law.  Even if you name it after someone and make it a crime. 

UPDATE:  See Greenfield at Fault Lines on the Op-Ed making essentially the same (valid) point he does in his comment here.

Wednesday, July 22, 2015

Self-Promotion, or Something

No, I haven't disappeared.

I've been away.  There were the days at a conference on sex offender laws.  There were the days at a conference on the death penalty.  There were a couple of days of vacation, hanging out with old friends in Texas and Toledo.

And as always when I'm away, there were the days catching up on the work that didn't get done while I was at conferences and R & R.  I've always said this was a hobby, which means everything else comes first.

And then there's this.  Over at MimesisLaw Scott Greenfield is gathering a few lawyers to write posts about criminal, er, "justice."  The collective is called Fault Lines, which isn't particularly catchy, but all the best suggestions were ignored (and Volokh Conspiracy was taken).  The idea, Scott explained at the beginning of June when the thing launched, is
people writing from varying perspectives, challenging bias and each other. We look forward to making this as real as it gets when it comes to criminal justice issues.
No, I don't know what that means either.  But Fault Lines has been consistently well-written and interesting.  I'm adding it to the blog roll.

But, and really, I do have a point here, Scott was concerned that all the writers he'd gathered were serious and just wrote straightforward stuff that any idiot could understand. Some were more critical of the courts and the cops than others, but they all seemed actually to believe in the Law.  So, and in order to bring things down a peg and add a dose of rambling and cynical pontification, Scott roped me into joining the thing.  

He said he needed a commitment for 2 posts a week. And he promised not to pay me.

How could I turn that down?  I said I'd sign on for a month and then we could reevaluate.

Monday Mimesis published my first post, Judge Kozinski and the Mystery of F.W. Murnau's Head. (I note that it seems not to be in the list of Fault Lines posts - a technological glitch that matches my skill set; Scott told me that my formatting "sucks," but over there I have a format editor to make it unsuck.)  The next post should be up there tomorrow.

Monday, July 6, 2015

A Procedural Quagmire

Over at Fault Lines (and if you haven't been going to Fault Lines, you should start), Christian Farias has a post on the constitutional difficulty of getting the Supreme Court to declare the death penalty unconstitutional.  The problem is a constitutional conflict.  

Chief Justice Warren's plurality opinion in Trop v. Dulles holds that the 8th Amendment's prohibition of "cruel and unusual punishments" 
must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.
Those evolving standards are where constitutional abolitionists try to make their stand.  But the 5th Amendment specifically authorizes capital prosecutions and executions.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
And as as Antonin Scalia, who hates Trop the way Ted Cruz hates Obamacare, pointed out in his concurring opinion (responding to Breyer's call for an outright 8th Amendment challenge) in Glossip v. Gross
It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.
As Farias says, 
It's a devastating textualist argument.
I'm not a textualist (though I think the text matters far more than Breyer does, since he believes more in what he imagines the Constitution wants to achieve than in what it actually provides), but I've long understood that conflict to be seriously problematic.  

Of course, the problem can be resolved easily enough by the Rule of 5.  The Constitution, after all, means only and precisely what 5 members of the Supreme Court say it does.  If there are 5 votes to say that the death penalty violates the 8th and is therefore unconstitutional, Scalia's fulminations won't matter.  And that's clearly been the hope for nearly 40 years.

But there's another way, the way Harry Blackmun was pointing in Callins v. Collins  when he concluded that the death penalty was unconstitutional.  

The 8th Amendment requires that the death penalty be imposed fairly, consistently, and reliably.  The 5th Amendment says that as long as there's sufficient process, executions are constitutional. Blackmun's epiphany, after his years of "tinkering with the machinery of death" is that the requirements cannot be reconciled.  What we've come to learn, what experience has taught, is that the framers expectation cannot be satisfied.  No amount of process is sufficient to achieve what the 8th Amendment requires.  

Here's Blackmun (footnotes omitted):
From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.1Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.
It's not the "evolving standards" of the 8th Amendment that the death penalty fails. It's the conditional authorization of the 5th Amendment.

At least, that's one argument.

Saturday, July 4, 2015

Warren McCleskey - Maybe Yet

Monday the Supreme Court issued its opinions (yes, that's intentionally plural) in Glossip v. Gross addressing how Oklahoma gets to go about killing folks.  Writing for 5 of the the Supremes, which is all it takes, Hang 'em High Alito said that it was OK for OK to use midazolam as part of the execution drug sequence because the guys they were killing didn't suggest a better and readily available way for the good people of the Sooner State to murder them.

After all, Alito said in his opinion for the Gang of Five, since the Constitution authorizes the death penalty, states have to be able to kill folks.  
because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.”
Which is nonsense, but hey, they want to kill people so they make shit up that allows it.

Anyhow, the interesting thing - and maybe the important thing - about Glossip isn't that Oklahoma (and other states that have been waiting) can jump right back into the killing biz.*  I mean, after the oral argument (and maybe before) it seemed pretty clear how the case was going to come out.  What didn't seem clear, what there was no way to predict, was that Breyer and Ginsburg would essentially declare the death penalty flat out unconstitutional and call for litigants to bring the issue to the Court.

That call has generated much handwringing in the capital defense bar this week.  The problem, as I suggested the other day, is counting to five.  It's pretty clear where Breyer and Ginsburg stand.  And it's widely assumed that if forced to answer the question, Sotomayor and Kagan would also vote for abolition.  But it takes five, and that's only four.  The fifth vote?  If there's no change in personnel on the Court, it'd have to come from one of the folks who just voted to kill Glossip and company.  One of the ones who signed off on 
it is settled that capital punishment is constitutional.
We know it won't be Scalia or Thomas, both of whom ridiculed the very idea that there might be something wrong with murder by the state.  Alito?  Not hardly.  The Ol' Balls and Strikes Roberts? No. The possible vote, the theoretically possible vote, the vote that some people think can be got, is Kennedy's.  Or not. Which is the problem.  

All of which makes especially timely Jeffrey L. Kirchmeier's Imprisoned by the Past: Warren McCleskey and the American Death Penalty.  

Kirchmeier uses the story of Warren McCleskey, and especially the Supreme Court's decision in McKleskey v. Kemp as a frame on which to hang the history of the death penalty in this country - and of efforts to abolish it.  

What Kirchmeier makes clear is that the history of the death penalty is inseparable from racism.  It's not that every execution is racially tainted, of course, but that the system is because the society is.  However much we might pretend otherwise.  However much they're looking to take the Confederate battle flag down from government buildings across the south.

It was May 13, 1978, when McCleskey, Bernard Depree, David Burney, and Ben Wright robbed the Dixie Furniture Company in Marietta, Georgia.  And one of them shot and killed Officer Frank Schlatt.    For that killing, Warren McCleskey ended up on death row.

In 1972, the Supremes decided Furman v. Georgia.  In that case, they held that every death penalty law in the country was unconstitutional.  But in application, not in theory.  The right law, it seemed clear, would pass constitutional muster.  While it wasn't absolutely clear what the problem was (all the separate opinions made it impossible to answer that question simply), the bottom line seemed to be that death sentences were freakishly arbitrary.  Potter Stewart famous phrasing captured the point.
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.
Thing is, that was only the first sentence of the paragraph.  Here's the whole thing (footnotes and citation deleted).
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.
Four years later, in Gregg v. Georgia, the Supremes decided that the problem had been resolved. States, including Georgia, had figured out ways to narrow the category of cases where death was an available sentence and then to guide the jury's discretion in deciding who should get it.  They could identify the worst of the worst.

Enter David Baldus and Company.  They studied Georgia's death penalty, did rigorous statistical analysis.  And concluded that what Potter Stewart's "concurring Brothers" demonstrated in 1972 was true.  Race mattered.  In particular, what mattered was the race of the victim.  Kill a white person and the odds of a death sentence - all other things being equal - go way up.

And so to the Supreme Court went Warren McCleskey.  

And the court said it didn't care.  It was too tough.  Race pervaded the whole system.  If it couldn't be tolerated, there'd be nothing left.  As Justice Brennan wrote (citation deleted),
The Court next states that its unwillingness to regard petitioner's evidence as sufficient is based in part on the fear that recognition of McCleskey's claim would open the door to widespread challenges to all aspects of criminal sentencing. Taken on its face, such a statement seems to suggest a fear of too much justice.
With that decision, the last hope for abolition by judicial fiat died.  If racism wasn't enough, nothing would be.

It wasn't so much that a win for McCleskey would have forcibly stopped the whole thing.  Indeed, Kirchmeier shows that there was discussion about how he could have prevailed on such narrow grounds that there'd have been no upheaval.  But racism was the bottom line, and if the Court had bought it, the states would have had a tough job coming up with systems that would pass muster.

Abolitionists, as Kirchmeier explains, turned to public education and the legislatures.  And, if not then, than in this century have had remarkable success.

Still, with death sentences down (Texas hasn't sentenced anyone to die this year.  Texas!) and executions down, and now with Breyer and Ginsburg . . . .

Kirchmeier's is a valuable book.  He combines history with clear legal analysis.  And, perhaps most importantly, he reminds us that the people we condemn are in fact people.  So he tells not just the legal story of Warren McCleskey but the personal one.  Yeah, we killed him.  But we didn't kill the Golem.  We killed a man.  
While Officer Schlatt was a hero who died in the line of duty trying to help others, the term "hero" does not apply to Warren McCleskey, and the purpose of this book is not to make him into one.  But Warren McCleskey's story is an American story of childhood violence turned into adult violence, of a boy and man who experienced racial bias, and of a wayward life seeking redemption.  As such, to understand the broad range of issues in his case one needs to understand the human being.
Give the last word to Justice Brennan, words that Kirchmeier uses as the book's epigraph:
[W]e ignore [Warren] McCleskey at our peril for we remain imprisoned by the past as long as deny [racism's] influence on the present.
* * * * *
My thanks to Jeff Kirchmeier and Oxford University Press for making a copy the book available to me for this review.
*Wasting no time, just hours after SCOTUS issued its opinion on Monday, the Oklahoma AG asked the Court of Criminal Appeals to set execution dates for Glossip and his co-petitioners in the Supreme Court. 

Thursday, July 2, 2015

Inverting Blackstone

It's called the "Blackstone Ratio" after William Blackstone who said it was
better that ten guilty persons escape, than that one innocent suffer.
It is a lovely idea.  One we pay homage to while patting ourselves on the back about the wonders of our Beyond a Reasonable Doubt standard of proof for a criminal conviction.  And one we don't mention as we issue a celebratory oopsie when we release a wrongfully convicted, innocent person and claim it shows how well the system works.

It's also a fantasy.  For all the noble assertions - reaching back into history centuries before Blackstone and up to the present in academic discourse and jurisprudential ideal* - we don't really believe it.  Ask your neighbors.  Ask your co-workers.  Unless they happen to be criminal defense lawyers, and maybe even then, they'll look at you as if you're a lunatic.

Still, we aspire.  At least, we did.
* * * * *
Enter the American Law Institute.** Institutionally respected (and influential, which is more important), the ALI consists of some 4,000 academics, lawyers, and judges (invitation only, please) who among other things drafts "Model" laws that tend to be adopted, with only slight variation, around the country.  In particular, ALI is responsible for the Model Penal Code.  Taught in law schools, what the Model Penal Code suggests as, er, model, states commonly adopt as law.  

Of course, ALI has to keep tweaking the MPC.  That's good, since it allows them to amend stuff that turns out to have deplorable consequences.  And it gives them a chance to add new crimes since, for instance, we didn't have cyberhacking in the old days.  (I don't actually know whether the MPC includes cyberhacking as a crime.  Nor, frankly, do I care enough to see if the answer is available somewhere that isn't behind their paywall.)  Of course, the tweaking also keeps them in business, and like every institution, ALI is deeply concerned with maintaining its relevance - and income.

But then . . . 

So for the past few years, ALI has been working on a new version (they call it an "updated" version of 
Article 213 of the Model Penal Code, which was ahead of its time when approved by ALI in 1962, but is now outdated and no longer a reliable guide for legislatures and courts.
But what is it, exactly, that made the old version unreliable? Probably bunches of stuff. It turns out that in the old version unless there was force or some form of coercion it was not a crime for sex "between professionals (mental health providers, lawyers, executives, etc.) and those under their supervision or in their care." You know for a doctor to have sex with a patient or a lawyer with a client or the CEO with the company's VP for handcuff design or whatever. Ooooh. Damn. Actually, in the regulated professions, that's pretty much a no no anyway. You could lose your license. Not enough punishment, though, since you couldn't also lose your freedom.

And of course the tweaking cranks up the sentences.  Because in 1962 we didn't think all sex offenses deserved LWOP followed by lifetime registration and matches on the front lawn to make it easier to burn down the registrant's home.

But I'm quibbling and ignoring the real news which is the criminal law adoption of Mattress Girl as a mascot for the new crime.  Elizabeth Nolan Brown at Hit and Run:
To this aim, ALI proposes establishing the new crime of sexual intercourse without consent, a misdemeanor, which takes place when a person "knowingly or recklessly has, or enables another person to have, sexual intercourse with a person who at the time of the act of sexual intercourse has not given consent to that act." (This is, of course, absent any sort of force, coercion, or indication the victim protested/resisted, which would remain felonies.) It would also expand the definition of criminal sexual contact to include any unconsented to contact with any body part if the perpetrator intended the touch amorously or lustfully.
How does that work, exactly?  Here's the explanation in a way-too-long excerpt from a memorandum opposing the draft recommendations by some 70 members of ALI (edited slightly for comprehensibility).  It begins with a hypothetical.
A and B are on a date and walking down the street. A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. B does nothing, but six months later files a criminal complaint. A is guilty of “Criminal Sexual Contact” under proposed Section 213.6(3)(a).
How can this be? The draft explains:
Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. 
The offense arises because A failed to obtain the draft’s requisite prior “positive agreement” to the “sexual contact.” Section 213.0(3). The draft repeatedly “makes clear that when a complainant’s behavior has been passive—neither expressly inviting nor rebuking the defendant’s sexual advances, that behavior cannot be considered sufficient to show affirmative permission.” A’s guilt is absolute because, “feeling romantically and sexually attracted” and feeling “a thrill as their hands touch,” A has no defense against the accusation that the touch included the “purpose of sexual gratification… or sexual arousal.” Section 213.0(5).
The draft purports to preserve mens rea as an element of the offense, but that is no comfort because it is proven with barely an effort from the prosecutor: “A, When walking down the street side by side with your date, you knew, or knew of the risk, that B had not expressed prior positive agreement that you could reach out and hold B’s hand, didn’t you? In fact, that’s exactly why you were “timid” about it, right?”
Of course, A does not have to testify but A will have great need to testify because of the shifting of the evidentiary burden that is caused by the “positive agreement” standard. Note that A is still guilty even if they were both wearing gloves. Section 213.0(5) (“clothed or unclothed”)
Consider the same couple, but now B responds to the criminal hand-holding by pausing to kiss A on the cheek. A remains guilty since there is no mechanism for retroactive consent, but now B is also guilty because A has not expressed prior positive agreement for this particular escalation. Under this scenario, the actions of both A and B would satisfy the elements of the offenses. Thus, they would be adjudicated as sex offenders, would be required in many states to register as such and would suffer the other collateral consequences of conviction for a sex offense.
Section 213.0(5) defines “sexual contact” expansively, to include any touching of any body part of another person, whether done by the actor or by the person touched. Any kind of contact may qualify; there are no limits on either the body part touched or the manner in which it is touched…. 
Ain't life grand.

OK, that's ridiculous. And fortunately there's no prosecutor who would proffer charges like that. Except that they would.  Plead to hand holding and we'll drop the more serious groping charges. Hey, it's just a little thing.  A kiss is just a kiss.

But here's the nub.  None of it is an accident.  The drafters understood, announced up front that they didn't care about snaring the innocent as long as they upped the odds of catching the guilty.
[T]he appropriate default position clearly is to err in the direction of protecting individuals against unwanted sexual imposition. (Discussion Draft No. 2, Substantive Material, at 53).
Of course, a legal standard requiring the affirmative expression of consent to sex will—inevitably—entail many false negatives, in the form of findings of unwillingness when in fact passionate desire was present. But the contrary standard now prevalent in American law will—just as inevitably—entail many false positives, assumptions of willingness and subsequent sexual intrusion when such intimacy was entirely unwanted. Section 213.2(2) reflects the judgment that the harms that arise under the latter standard present far greater reason for concern. (Id.).
Ah, yes.  Better that ten innocent persons suffer, than that one innocent escape.

Hear that creaking sound?  It's Blackstone turning over in his grave.

*See Alexander Volokh's "n Guilty Men."
** The ALI's self definition:
The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law.

Wednesday, July 1, 2015

The Banality of Samantha Hill

Apparently I was mistaken.

I was deeply moved by the families of the victims of the Charleston killings.  I thought it a wondrous thing, not to forget, but to forgive.  To return mercy for hatred.  That's a theme here, of course.  And while I don't know that I'd be capable of such generosity of spirit if it were my child/spouse/sibling, I know that I wish I were.

But, as I said, I was apparently mistaken.

The rule, Samantha Hill explains in a post at the Hannah Arendt Center is that one should forgive small harms but not big ones. 
In cases of willed evil, like that of Dylann Roof,[*] forgiveness is not called for. Forgiveness absolves the guilty and says, “But for the grace of God we all could have done what Roof did.” Forgiveness offers solidarity with the wrongdoer based on the Christian principle that we are all sinners: “Forgive us our trespasses, as we forgive those who trespass against us.”
And see, what Dylann Roof [if you believe the stories] did is not what we might do.  We're better than he is, so we should hate him unreservedly.  

On the other hand, we should be careful not to punish him. 
Punishment is a response to a crime that reintegrates the criminal back into society. Once the punishment is born, the criminal again is to become a member of society. But some crimes are so horrible that no reintegration into society is possible, and the institutions we have are not designed to deal with such acts. 
Since he can't be redeemed, or in any event should not be, we can't punish him.  LWOP? Death penalty?  No, because either way, after he's dead we'd be welcoming him back into our midst.  And we can't allow that because he's evil.  Pure evil.  

In fact, Hill tells us (securing her place in line as a potential winner in the race to be among the first to embrace Godwin's Law), he is Adolf Eichmann who oversaw the Nazi's deportation and execution of millions. Eichmann, who said he would
leap laughing into the grave because the feeling that he had five million people on his conscience would be for him a source of extraordinary satisfaction.
Not to put too fine a point on it, but the comparison is bullshit.  Even if the Charleston killer aspired to be Eichmann, he didn't succeed.  The single act of a crazed loner (even an evil crazed loner) cannot match the horror (and yes) banality of implementing the Final Solution.

Regardless, Hill is quite clear that her version of Dylann Roof cannot/should not/must not be punished.
In my judgment, we do not have the power to forgive or punish Roof; even sentencing Roof to the death penalty would constitute recognition of his act. His act is the kind of willed evil that “radically destroy[s]” our “potentialities of human power.” We must refuse to forgive Roof and also resist the urge to normalize his acts by punishing him within our legal system. There is no punishment equal to his crime.
What then?  The easy answer is that he must be expelled from human society.  Not by locking him away from society for eternity.  That would be punishment and would bring him back into society.** Nor, for the same reason, can we expel him from society by giving him the death penalty.

No, what we must do instead of locking him away or giving him the death penalty is execute him.  As a political but not a legal act.  

You know, as he killed people to make a political rather than a legal point. 

Oh, wait.

H/t Joachim K├╝bler

*Hill accepts, without any apparent doubt, that Roof was the killer and that what the police say about him, including the statements they say were in his purported confession, is true.  Those may be fair inferences from what the media tells us.  It does not follow that they are in fact accurate.
**Hill has a PhD in philosophy and a particular interest in  incoherent and self-contradictory "poetic thinking."