Just a Simple Human Act

This is Leroy Smith.

Thoughtful, composed.

This is Leroy Smith, too.

Therein lies a tale.

Smith is the Director of South Carolina's Department of Public Safety.  He was working the state capital that day, along with bunches of his officers.  They were doing crowd control for the rallying New Black Panther Party members who were cheering the removal of the Confederate Battle Flag and shortly afterward the rallying Klansmen and National Socialists on the other side of the building protesting the Battle Flag's removal.

Just another 100 degree July day in the trenches of our continuing racial divide.

But, some of the neo-Nazi's, apparently weren't used to Palmetto State summers.  Master race, perhaps, but taken down by the heat.

Dan Barry in the Times.

Bike-rack barricades had been arrayed to separate the white-supremacist demonstrators from a swelling crowd of people, some fresh from the black-empowerment rally on the north side. “You could kind of feel the tension in the air,” Mr. Smith recalled.
Soon the demonstrators, a few dozen, came marching from the west, flanked by Mr. Smith’s “advance civil emergency response team.” Many wore the black shirts of the National Socialist Movement, a neo-Nazi organization that, according to its website, believes: “Only those of pure White blood, whatever their creed, may be members of the nation. Noncitizens may live in America only as guests and must be subject to laws for aliens. Accordingly, no Jew or homosexual may be a member of the nation.”

Just another 100 degree July day in the trenches of our continuing racial divide.

But, some of the neo-Nazi's, apparently weren't used to Palmetto State summers.  Master race, perhaps, but taken down by the heat.

Seanna Adcox for AP:

Smith said that's when a protester approached, saying someone needed medical help. Smith and Columbia Fire Chief Aubrey Jenkins, who also is black, responded to a demonstrator overcome by the heat.
The first white demonstrator they helped climb the steps and enter the air-conditioned Statehouse could walk on his own. The second clearly could not, Smith said.
"He was struggling, fatigued, appeared to be lethargic. I knew there was no way he could make it up the steps on his own," Smith said. So Smith coached him up the steps, putting his right hand on his arm and his left arm around his body.

Smith helped him up the stairs, encouraging him, took him into the capital where it was air conditioned.  Sat him down to recover.

Rob Godfrey, the Governor's Deputy Chief of Staff, took the picture and sent it off by twit.  Where it went viral.

There's something about that photo: The black cop helping the ailing white supremacist.  Dan Barry again.

Asked why he thinks the photo has had such resonance, he gave a simple answer: Love.
“I think that’s the greatest thing in the world — love,” said the burly, soft-spoken trooper, who is just shy of 50. “And that’s why so many people were moved by it.”

Those of you who hang around these posts know that I believe deeply in, and marvel at, mercy and grace and the mysteries of the human heart.

Leroy Smith talks of the power of love.  

I suspect if you really pinned him down he'd say he was just helping someone in need because, well, that's his job.  And it's just the basic thing you do.

Except, of course, that mostly we don't.

Here's the picture again.

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? 

No.  

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

No.

Damn.  This is fucked 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.