There's No Business Like Justice Business

He's competent.  

That is, and per the statutory language, he is able "to understand the nature and consequences of the proceedings against him [and] to assist properly in his defense."

So says the judge.  The guy was evaluated and the judge held a hearing (on more than one day, no less! Wowsers!).  

They begin picking a jury today.

Oh, sorry.  This is Dylan Roof.  The guy who they say walked into the Emanuel African Methodist Episcopal Church in Charleston, S.C. and blew away nine people because, they say, the people were African-American and because, they also say, Roof did it in order to start a race war.

Which is how it happens that a federal judge is going to oversee a capital trial for young Mr. Roof. Because Loretta Lynch want him to get executed by the feds.

Not for killing nine people (which is a lot, but nowhere near the record).  Not for killing them purposely.  Not for killing them during a Bible study or while they were in Church.  None of that.

Loretta Lynch wants the feds to kill him because his heart wasn't pure when he killed.  His motive was bad.  (As opposed to the noble motives that might drive other folks to kill nine people in church? OK, I'm probably not being altogether fair.  No, actually I am.  It is that stupid.)

Of course, the representatives of the good people of South Carolina also want to kill Roof.  Next-in-line to be UN Ambassador Nicky Haley was for it from day one.  The prosecutor took longer to sign on, but she was for it, too.  Still the feds get first shot at finding 12 jurors who'll look at Roof and say - as one judge put it in explaining why as a member of a three-judge panel he once voted against death -

FUCK YOU

Anyway, and as the Times reported, amid the rush to kill, what with all that enthusiasm and jockeying for first, er, shot at ordering up a gurney by the feds and the Southern Carolinians, it turns out that the representatives of the people don't really give a rat's ass what the people think.  Of course, that's always true in capital cases to the extent that we kick the folks who don't believe in killin' off the jury. What's being ignored here are the voices of the families of the murdered and the survivors.

There's a big movement for so-called "victim's rights."  They're enshrined in various state constitutions.  Paul Cassell's made a career advocating for them.  Politicians are enthusiastic. I mean, who can oppose treating those whose lives are destroyed by criminal acts with dignity and respect - with honoring and guaranteeing their needs.

Needs that won't much be helped by years of appeals and arguments and guaranteeing that Roof's hate is repeatedly front and center.  Needs that won't be helped by more hate and more killing.  Of a guy who's game to plead guilty and spend the rest of his life in prison - which will happen anyway, the only real question being how his life will be ordered to end.

And then there's the thing about not returning hate for hate and killing for killing.

Ah, but that's without the posturing.  Because hate.  Because victim's rights only count when the victims cry out for vengeance.  

The show begins today.



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And see Scott Greenfield from yesterday.

Loretta Lynch v. Connecticut

This week the Attorney General finally made up her mind.

Following the department’s rigorous review process to thoroughly consider all relevant factual and legal issues, I have determined that the Justice Department will seek the death penalty,

That's Dylan Roof, the kid who's charged with killing 9 people at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina last year.

Roof, who's already facing capital charges in South Carolina courts - trial currently set to begin in January - now risks the possibility of another death sentence.  From the feds.  Because he didn't just kill 9 people.  He did it for bad reasons.  Teach that rotten kid a lesson.

It took a year of dithering rigorous review to determine that this was an appropriate use of federal resources.  So that we can get him killed twice. Or maybe it's because the AG doesn't trust those racist hicks in South Carolina to kill a white guy who killed black folk for kicks.  So the AG needs to arrange for a back-up.  You know, just in case.

Sigh.

Meanwhile, in Connecticut.  

• Where the legislature abolished the death penalty going forward but left it in place so that Joshua Komisarjevsky and Steven Hayes (and incidentally the 9 other folks on death row there) could still be killed.  
• Until State v. Santiago the Connecticut Supreme Court said that the death penalty violated the state's constitution and said that the 11 guys on death row couldn't be executed, either.
• And then, after the personnel on the court changed, put Santiago on hold while reconsidering the matter in the case of Russell Peeler, which was not a good sign if you thought they had it right the first time.

Yesterday, the court spoke.  There are concurrences and dissents, but in its brief and unsigned opinion (footnotes omitted), the court said it would follow its precedent.

A jury found the defendant, Russell Peeler, guilty of, among other things, one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8) and one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (9) in connection with the 1999 shooting deaths of a woman and her young son, and, following a capital sentencing hearing, the trial court, Devlin, J.,rendered judgment imposing two death sentences. This appeal of the defendant’s death sentences is controlled by State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), in which a majority of this court concluded that, following the enactment of No. 12-5 of the 2012 Public Acts (P.A. 12-5), executing offenders who committed capital crimes prior to the enactment of P.A. 12-5 would offend article first, §§ 8 and 9, of the Connecticut constitution. See, e.g., Conway v. Wilton, 238 Conn. 653, 658–62, 680 A.2d 242 (1996) (explaining scope of and rationale for rule of stare decisis). Our conclusion that the defendant’s death sentences must be vacated as unconstitutional in light of Santiago renders moot the defendant’s other appellate claims. The judgment is reversed with respect to the imposition of two sentences of death and the case is remanded with direction to impose a sentence of life imprisonment without the possibility of release on each capital felony count; the judgment is affirmed in all other respects. 

Connecticut is known, among other things, as The Constitution State.

The Attorney General is named Lynch.

You can't make this shit up.

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.

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 Kübler

-----------------
*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."  

When Life (or Death) Isn't Enough

No, in one sense it doesn't matter what you call it.   Nine people are dead.  Killed.  Murdered.  Nine innocent people who did nothing to deserve their deaths.  They just happened to be in the Emanuel African Methodist Episcopal Church in Charleston, South Carolina when someone, allegedly Dylann Roof, took a gun and started shooting people.

Names won't change that.  Call it terrorism if that makes you feel better.  Call it a hate crime.  Call it Swiss cheese.  Nine people are dead because they happened to be in the place where a madman* started shooting.

And yet.

As I keep saying, and did just the other day, words matter.  They provide the categories that let us think about things and try to understand.  

So we'll start with murder.  Forget the criminal law stuff where we talk about what the elements are and whether Dylann Roof or whoever actually did each of them and whether it's proved beyond a reasonable doubt.  Just everyday murder: Purposely killing another person.  Yep. We got that.

Terrorism. Much tougher.  But roughly (I'm making this up, not looking it up) violent acts for the purpose of effecting social or political change.  Is that what he did?  Did he hope that black folk would be so frightened that they'd flee the country, or at least Charleston? Did he want to start a race war?  Or did he just kill because . . . .

Well, that brings us to hate crime.  That's when the act was done out of, er, hate.  Category hate, that is.  Not A hates B so A kills B.  Instead, it's A hates and kills B because B is _________ (a schoolteacher, a policeman, an environmentalist, a mentalist, an accordion player, a Palestinian, an Israeli, African American).  Maybe.  There's no shortage of evidence, it seems, that Dylann Roof (and that's who's accused of the killings) was racist pig.  So yeah, maybe a hate crime.

Apparently, the FBI thinks so.  And the Department of Justice.  The Times reports that federal hate crime charges are "likely."

But Justice Department and F.B.I. officials agreed that the Charleston shooting was so horrific and racially motivated that the federal government must address it, law enforcement officials said. South Carolina does not have a hate crimes law, and federal investigators believe that a murder case alone would leave the racial component of the crime unaddressed.
“This directly fits the hate crime statute,” one law enforcement official said. “This is exactly what it was created for.”

Because, and I suppose this is the point, it's a terrible thing that he killed people.  And for that he should get 9 consecutive terms of life without parole.  Or 9 death sentences to be served sequentially. But then we'd only be saying he was wrong to kill those people.  When we also need to say he was wrong to be a racist pig.  For which he could get an additional life sentence.

That'll teach 'im.






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*That's a clinical term, not a legal one.  I don't know whether the person who killed the nine is nuts (another clinical term) in a way that Palmetto State law would recognize as making him not guilty by reason of insanity. (I know that it's unlikely, only because almost nobody satisfies those standards, but I don't know.)  What I do know is that no sane person does that shit.

Words

Shakespeare knew.
From Romeo and Juliet, Juliet to Romeo, Capulet to Montague:

’Tis but thy name that is my enemy;
Thou art thyself though, not a Montague.
What’s Montague? it is nor hand, nor foot,
Nor arm, nor face, nor any other part 45
Belonging to a man. O! be some other name:
What’s in a name? that which we call a rose
By any other name would smell as sweet.

Of course, they both ended up dead.  it's perhaps not all that simple.

Still, words, names, count.

God, after all, named the world into existence (or so claims Genesis). The word, logos (λόγος), calls forth the thing.

God said, "Let there be light, and there was light."

Which, as I've noted before, is a pretty cool trick.

And brings me to Charleston, South Carolina, and what was surely murder whatever else it might be. Ah, but that "whatever else."

DOJ is trying to determine whether it was a hate crime or terrorism.  Presumably, that's so that they can prosecute the bad guy if South Carolina decides to give him a medal.  And folks across the spectrum are arguing about which of those it should be called.

As if it mattered.

Scott Greenfield:

Murdering people is offensive. Murdering people because of their race is offensive. What you call it is irrelevant. When you understand that, the debate over whether to call it terrorism begins to look a lot more ridiculous, narcissistic and offensive.

Which is of course true.  Kinda.  Because naming is explaining, and explaining gives us categories that tell us what to do.

If it's Terrorism, we have a box we can put it in.  And we can add it to the war.  Something to eradicate.  Send drones.  Take out the leaders.  Kill enough of them and its over.  (Just look how well that's been working in the middle east, but I digress.)

If it's a hate crime, well, then we educate or send people to church where they'll learn about love. (OK, that was a bad example.)

If it's racism?  Hey, that's over.  Remember, we elected a Kenyan as President.  But if we'd just get the Stars and Bars off the S.C. flag.  (And after all, Texas won't have to put them on license plates.)

Or maybe it's guns.  Obama says to control them.  The gun lobby says the problem is that we don't have enough. 

Or drugs.  Rick Perry, who called the killing of 9 an "accident," blamed it on drugs (while admitting he didn't know what he was talking about).

Also, I think there is a real issue to be talked about. It seems to me, again without having all the details about this, that these individuals have been medicated and there may be a real issue in this country from the standpoint of these drugs and how they’re used.”

So crank up mandatory minimums.  Or decriminalize.

Or provide the mental health care crazy people need.

Or maybe it's just evil.  Which is maybe a result of Adam and Eve eating that piece of fruit.  Or maybe untreatable psychopathy that isn't the same as being crazy.

Or gee, maybe he was just born that way.

The thing is, none of this, no name, will change the fact.  Scott again.

No matter what characterization floats your boat, there will still be nine dead human beings in Charleston, and none of them will be you.

And nothing will bring them back.
Of course, we'll put up a plaque.  Raise money.
And then?
Nikki Haley, South Carolina's governor, called immediately for the death penalty.  Mark Berman in the Washington Post.

“We absolutely will want him to have the death penalty,” Haley said Friday morning. “This is the worst hate that I’ve seen and that the country has seen in a long time.”  

Of course, she's not alone.  Even some from the family of Dylan Roof who's been arrested and charged with the killings. Bob Fredericks in the (sorry) NY Post.

“If he’s found guilty, I’ll be the one to push the button myself. If what I am hearing is true, he needs to pay for it” uncle Carson Cowles told “Good Morning America.”

The local prosecutor, Scarlett Wilson, expresses more restraint. Mark Berman, again, in a different story.

The prosecutor who will pursue the case against the gunman accused of killing nine people inside a historic church in Charleston, S.C., said Friday she has not decided whether she will seek the death penalty in the case.
She said that decision would come at a later time, after she was able to speak to the relatives of the people killed Wednesday inside the church.
“My first obligation, my primary obligation is to these victims’ families,” said Scarlett A. Wilson, the prosecutor for Charleston County, at a news conference Friday afternoon. “They deserve to know the facts first. They deserve to be involved in any conversations regarding the death penalty.”

Actually, her obligation is to "justice," whatever that might be, and then perhaps to the people who elected her.  But at the moment that's almost (not quite, but almost) a quibble.  In any event, what of those "victims' families"?

They forgave him.

Jeffrey Collins for AP.

Felecia Sanders survived the attack on her Bible study group by pretending to be dead, but lost her son Tywanza.
On Friday, she came face to face with the alleged shooter, as she had the night of the slaughter.
“We welcomed you Wednesday night in our Bible study with open arms,” Sanders told Dylann Storm Roof, who appeared via video conference for a bond hearing. “You have killed some of the most beautifulest people that I know. Every fiber in my body hurts … and I’ll never be the same.”
“Tywanza was my hero.”
And then Sanders did something remarkable: She forgave the young man who has been charged with nine counts of murder for the bloody attack at the historic Emanuel African Methodist Episcopal Church.
“As we said in Bible Study, we enjoyed you, but may God have mercy on you,” she said.
Sanders was one of several family members of victims to be given a chance to address the court during Roof’s bond hearing. Others also forgave him. They advised him to repent for his sins, and asked for God’s mercy on his soul. One even told Roof to repent and confess, and “you’ll be OK.”

One more from Collins.

The families are determined not to respond in kind, said Alana Simmons, who lost her grandfather, the Rev. Daniel Simmons.
“Although my grandfather and the other victims died at the hands of hate, this is proof — everyone’s plea for your soul is proof they lived in love and their legacies will live in love, so hate won’t win,” she told Roof during the bond hearing. “And I just want to thank the court for making sure that hate doesn’t win.”

See, forgiveness and mercy are words, too.  They don't explain.  They don't categorize. They don't offer easy solutions.
But they heal.  Which is probably the most any of us can hope for in the wake of horror.

On Certainty - Part 2

This was going to be a comment on Judge Kopf's post, Evil, following on the killings at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina.  But it was getting too long and filled with my typical digressions, so I thought I'd come over here.

There are, the good judge declares, those beyond the pale.  They are, he says, 

utterly beyond redemption, and must be caged

And he offers, as exemplum, 21-year-old Dylann Roof, identified by the New York Times as the now-arrested suspect.  Look, he says, reprinting a picture of a very sullen looking Mr. Roof from the Times (I'm not reproducing it), this is

what evil looks like.

Which I suppose gains some traction if it turns out that Mr. Roof is in fact the person who shot and killed all those people, though I'm just enough committed to the Constitution - and to doubt - to want to hold my declaration until he's actually convicted of something.  And even then.

I want to be clear about this.  I don't doubt that the killing of nine people is an horrific act.  And killing them because they happen to be African-American (and how convenient that they were all in one place) is particularly unsettling.  I hope the authorities track down and prosecute the right person (if it's Mr. Roof, fine, though I'd hope they don't get so invested in their certainty that they ignore leads that may point to an alternative, or additional, suspect.

But really, and aside fro the rush to judgment, the issue for the moment (and for Judge Kopf - hey, that's who I'm writing in response to) isn't about what did or did not happen.  It's about young Mr. Roof, or whoever.  It's about 

EVIL

Sigh.

And it's about redemption - or its possibility.  And about throwing away the key now, because we know, just know.  

Because this is 

what evil looks like.

Except, well, maybe.

Maybe Roof (or whoever) can't be redeemed.  Maybe he's the Golem.  Maybe he's Satan frgodssake.

Like Judge Kopf, I've dealt with a whole lot of people who've done monstrous things.  Unlike Judge Kopf, I've gotten to know some of them quite well.  I've looked at where they came from.  I've looked at how they came to do the things they did, how they came to be the people they are.

And I've concluded that, in the last analysis, I don't know.

I know about continuities.  I know about mental illness and trauma and what growing up in a setting where a day on which you're beaten virtually senseless is one of the better days can do to a person.  I know about epigenetics.  I know about young men and women unleashed on a world they cannot cope with, that they were never taught to cope with.  

I know about how the only identity that's valued is the identity of drug dealer or killer.  I know about cravings, for drugs, for sex, for the thrill of killing someone that reminds you that you're alive.

I know how good people are driven to do terrible things.  And I know people I'd rather not see out on the street.

So, you want to have ________ over for dinner?

said a prosecutor who called me after I filed a motion for bond for a guy who'd just been convicted of multiple homicides and sentenced to a minimum of 64 years in prison and a realistic maximum of until you die or some other inmate kills you.

I had a client, a terribly violent man.  Violent as a small boy.  Violent as a teen.  Violent as an adult. He committed one murder.  Did his damndest to commit another.  The miracle was that he hadn't committed others.  The first time I sat in a room at the jail with him I could feel the violence bubbling up.  It's not that he wanted to hurt me, but that he would.  Or so it felt.  

Then they got the drugs right. 

It was Shakespeare that did it for Larry Newton.   For others it's finding some religion. Or meditation or discovering a friend or therapy.  Or just time.  Or maybe it's a miracle.

And of course, there are others for whom nothing. 

When I teach at death penalty seminars, I often say that there's no case that can't be won, no matter how horrific the crime.  There's no case, that is, that can't end up with something other than a trip to death row.  Because you never know what will happen, what can happen.  But if there's no case that can't be won, it's also true that not every case will be.  No matter what.  No matter how good. Sometimes the verdict will be death.  And you can't know for sure, not ever, until the jury comes back.

Which is the problem.  

Are there people who do terrible things, who have no compassion, no feeling, who simply prey?  And who will, forever, and no matter what.  Yeah, probably.  I think I've met a few of them.

But see, I don't know who they are.  Neither do you.  It's easy to recognize the monstrous act.  Call it evil if that makes you feel better.  But the monster?  The person beyond redemption?  

Out there? Perhaps.  Identifiable with any certainty?  Fraid not.

Which doesn't mean that there aren't people who should probably be locked up forever.  It does mean, though, that we don't really know who they are - certainly not in advance.  We can throw the key away put 'em all in solitary forever, send them to GITMO (turns out we haven't been too particular about who we did send there).  Hell, we can just execute everyone we don't like.

Or we can recognize that one of the things that keeps the monsters monstrous and turns the maybe monsters into monsters is denying them hope.  

And since we don't really know who's who. 

Which brings us back to Mr. Roof.  Who, if he is in fact the killer in the pews, did a monstrous thing.  But that tells us virtually nothing about who he is.  

Let alone about who he will be.