Saturday, June 09, 2007

It Was The Drugs, Man

William Otis on the 30 months sentence for Scooter Libby:
Neither vindication of the rule of law nor any other aspect of the public interest requires that Libby go to prison. He is by no stretch a danger to the community, as "danger" is commonly understood. He did not commit his crime out of greed or personal malice. Nor is his life one that bespeaks a criminal turn of mind.... This was an unusually harsh sentence for a first offender convicted of a nonviolent and non-drug-related crime.

Eric Muller calls this argument "garbage", noting that in other manifestations Otis is a strong proponent of strict adherence to sentencing guidelines--in which case 30 months was at the bottom of the suggesting sentencing range. It's funny how the "fairness" of the system becomes suspect when the powerful are the one's ensnared.

But for my part, I wish to point out the seeming outlier in the passage "first offender convicted or a nonviolent and non-drug-related crime." There really is no standard of justice in which a "first offender convicted of a drug-related-crime" should substantially increase the sentence over comparable, non-drug-related crimes. To be sure, there are some non-violent but drug-related-crimes which arguably should carry prison sentences (dealing, perhaps), but then, there are some non-violent non-drug-related crimes which should do the same (fraud, money laundering). However, the sentence enhancements we see for mere possession crimes are ridiculous bordering on absurd.

In general though, it galls me to think that a public servant's breach of the public trust on an issue not of sex, but of national security, should be considered less serious than, say, a first time crack possession offense (which, FYI, carries a mandatory sentence double that of Libby's). I don't believe in mandatory sentencing guidelines, because I believe context is a serious component of all criminal cases, and I think it's important to take it into account. Certainly, I've seen cases where judges use their discretion to assign absurdly low or high punishments. But far scarier than abuses of discretion that lead to injustice is the possibility that judges won't be able to avoid an injustice that is before their and every observer's own eyes. That's the promise of mandatory sentencing guidelines, and in the case of Crack Cocaine (among other crimes) it is the everyday reality.

Pick Again

What is Rep. Alcee Hastings (D-FL) doing in a key position on Hillary Clinton's Presidential Campaign?

For those of you who don't know, Hastings is a former federal judge--former, because he was impeached by Congress for perjury during a trial for bribery (that ended in acquittal). The vote was bipartisan, and the chair of the committee that impeached him was none other than the lion of the Congressional Black Caucus, Rep. John Conyers (D-MI).

Perhaps Clinton is trying to shore up support among Black voters (who will be key for her in the Democratic primary), but still, there are plenty of talented Black politicians out there who are not tainted by bribery and impeachment proceedings. Hastings past is no secret--this is a misstep Hillary could have seen coming.

Friday, June 08, 2007

Help Wanted

Vikram Amar, Randy Barnett, Robert Bork, Alan Dershowitz, Viet Dinh, Douglas Kmiec, Gary Lawson, Earl Maltz, Thomas Merrill, Robert Nagel, Richard Parker, and Robert Pushaw--a very notable set of legal luminaries--have all petitioned to file an amicus brief in the Scooter Libby case, arguing that the appointment of Special Prosecutor Patrick Fitzgerald is a close constitutional call. In granting the request to file the brief, Judge Reggie Walton wrote the following footnote:
It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.


For what it's worth, Dershowitz and Amar would probably call themselves liberals, while Bork, Dinh, & Kmiec are definite conservatives, and Barnett is a libertarian. I know nothing of the others.

Boxing Blogging: 6/8/07

Tonight's Friday Night Fights card comes at you from Montreal, Canada. Like Oklahoma, Montreal has hosted some excellent fights, supported by a passionate fan base, but has to my eye suffered from controversial judging. Tonight's card, which featured three Montreal natives, had the potential to add to that notorious legacy.

Fortunately, judging didn't make a difference in the first two televised fights: Antonin Decarie (15-0, 5 KOs) won convincingly over Aaron Drake (12-5, 9 KOs), and the incredibly gifted Jean Pascal (17-0, 13 KOs) didn't let the judges have a say at all, getting a corner retirement from late replacement Christian Cruz (12-8-1, 10 KOs).

The main event was a very exciting and meaningful IBF junior welterweight eliminator. Herman Ngoudjo, who dropped a very controversial split decision to pound-for-pound elite Jose Luis Castillo earlier this year that many thought he won, faced former two-time champion Randall Bailey, a tremendously powerful knockout artist. Ngoudjo, a Cameroon Olympian who now makes his home in Montreal, got clipped in the first round but responded with a beautiful counter that sent Bailey to the canvas. Bailey came back in round two to score a knockdown of his own. Then the heavens opened up and the rain started pouring down on the outdoor arena--complete with a brief power outage between rounds four and five. But the fight continued on, and though it didn't have the fireworks of the early rounds, both fighters continued to put on an impressive show. At the end of the day, I had Bailey winning an extremely narrow (one point) decision--and I felt that was the right outcome. Teddy Atlas had him winning by two.

In theory, this should be a recipe for disaster, with a Montreal hero going to the scorecards in Montreal in a razor-thin fight that I thought he barely lost. But, to the organizers credit, the panel was actually fairly mixed: one judge was from Montreal, but another was from Bailey's hometown of Miami, and the third hailed from Las Vegas, the closest thing boxing has to "neutral" turf. At the end of the day, the Las Vegas judge joined his Montreal compatriot to give Ngoudjo a tight split-decision victory. So Ngoudjo improves to 16-1, 9 KOs, while Bailey drops to 35-6, 32 KOs.

Bailey was justifiably upset--but this was a very close fight, and in Ngoudjo's defense he shouldn't always come out on the wrong end of close split-decision contests. Sometimes the breaks cut against you, other times, cut for you. Personally, I think Bailey's comeback effort will have suffered not a whit from this contest. He showed himself to be tough, far more versatile than his old one-punch glory days, and even a bit of slickness and movement. We won't see the last of him. And, regardless of whether I think he won this particular fight, Ngoudjo is a bona fide rising star, and deserves another shot at the crown, not in a match he was pre-selected to lose.

The only other thing to say about boxing tonight is to talk about tomorrow's Zab Judah-Miguel Cotto superfight. I don't buy PPV fights, so I won't see it personally. It should be explosive, though. Predictions? Well, a lot depends on how much Judah's lost in his long lay-off--his tune-up fight against Ruben Galvan was stopped after one round due to an accidental foul--and that's anyone's guess. But assuming Judah's still "got it", what he's got is spectacular speed. What's the best way to counter speed? Body punching, and Cotto's body hooks are lethal. Judah has impressive power along with his hand speed, but Cotto, while not having the sturdiest chin, does have a spectacular heart. Judah has gotten knocked silly before, while Cotto, while having been dazed and hurt, has never been knocked out, and never lost. I give a slim advantage to Cotto.

Remembering My Lai

The spectacular blog Lawyers, Guns, & Money has a recurring feature entitled "Worst American Birthdays." It runs on the birthdays of some of the more notorious people ever to disgrace our nation's stage. Normally, I don't pay it much attention, because normally they are either well-known villains (like John C. Calhoun) or more modern corrupt hacks.

But today, the focus was on Lt. William Calley, key player in the gruesome My Lai massacre. Here's how Pvt. Dennis Conti described the events at Calley's trial:
Lieutenant Calley came out and said, "Take care of these people." So we said, okay, so we stood there and watched them. He went away, then he came back and said, "I thought I told you to take care of these people." We said, "We are." He said, "I mean, kill them." I was a little stunned and I didn't know what to do. He said, "Come around this side. We'll get on line and we'll fire into them." I said, "No, I've got a grenade launcher. I'll watch the tree line." I stood behind them and they stood side by side. So they -- Calley and Meadlo -- got on line and fired directly into the people. There were bursts and single shots for two minutes. It was automatic. The people screamed and yelled and fell. I guess they tried to get up, too. They couldn't. That was it. They people were pretty well messed up. Lots of heads was shot off, pieces of heads and pieces of flesh flew off the sides and arms. They were all messed up. Meadlo fired a little bit and broke down. He was crying. He said he couldn't do any more. He couldn't kill anymore people. He couldn't fire into the people any more. He gave me his weapon into my hands. I said I wouldn't. "If they're going to be killed, I'm not going to do it. Let Lieutenant Calley do it," I told him. So I gave Meadlo back his weapon. At that time there was only a few kids still alive Lieutenant Calley killed them one-by-one. Then I saw a group of five women and six kids -- eleven in all -- going to a tree line. "Get 'em! Get 'em! Kill 'em!" Calley told me. I waited until they got to the line and fired off four or five grenades. I don't know what happened....

Sentenced to life in prison, President Richard Nixon quickly moved that his sentence be served as a house arrest, and--a scant three years after he was convicted of premeditated murder leading to the deaths of 504 innocent civilians--he was paroled and released from prison.

While we are on the subject of My Lai, we should also mention the name Warrant Officer Hugh Thompson, Jr.. A helicopter pilot, Johnson observed the massacre and intervened, attempting to save wounded Vietnamese and issuing orders to the officers on the scene (who outranked him) to stop the massacre. At one point, he had his gunners train their heavy machine guns on the American soldiers, with orders to shoot if the killing continued. His actions directly saved the lives of untold numbers of My Lai residents. Unfortunately, the survivors were relocated to another hamlet which was subsequently destroyed by South Vietnamese Air and Artillery bombardment.

Calley and Thompson represent the two extremes of America--the former, how low we can sink, the latter, how high we can soar. It is, of course, outrageous that a bona fide war criminal got away with serving three years of house arrest--a blot that almost (not quite) is as great a stain on America as the massacre itself. Lest we think that "we would never do such a thing," remember William Calley. Lest we think that we would be quick to punish the perpetrators, let us remember that the army covered up and attempted to white-wash the massacre for years, and remember that Calley, the only man convicted for this crime, served less than 5 months in prison for it.

And lest we despair that there are no men and women in our armed forces who would stand up to such brutal conduct, let us remember Hugh Thompson.

Disgusting Thugs

Jerusalem Post: "Jews vandalize Muslim graves near Ariel."
A Muslim cemetery in the village of Kifl Halith near Ariel was vandalized early Friday morning by a group of Jewish worshippers who had come to pray at the nearby grave of Yehoshua Bin-Nun.

The vandals spray-painted the slogan "Death to Arabs" on some graves and broke others. A total of 10 tombstones were desecrated.

According to the IDF, the guilty individuals were an anomaly among the group of some 1,300 worshippers that had come to pray at the rabbi's grave. Most, the army stressed, behaved in a manner "appropriate to a holy place."

I hope that the guilty parties are caught and punished to the full extent of the law. I am pleased that the ADL and other Jewish groups have promptly condemned this hate crime, and for my part these thugs have absolutely no place in the Jewish community. They are an embarassment to my religion, and should be treated as nothing more.

The Epidemiology of Criminal Sanction

A few summers ago, I recall reading an article by Charles Lawrence III on "the epidemiology of racism." Lawrence compared racism to an epidemic disease. It's wide-spread, it's extremely dangerous, but (importantly) it's not your "fault" for catching it. We don't think that malaria victims are worse individuals for their infection. Lawrence hoped that describing racism in this manner would allow folks to talk about it more honestly and without the reflexive stigma and defensiveness that racism-as-a-moral-failing provokes. We don't want to ostracize sick individuals, but nor do we want to paper over their illness. We want to help heal them.

I always liked Lawrence's idea. But today, Laura Appleman has a good post at PrawfsBlawg that exposes a flaw. In theory, perhaps, diseased individuals should not be stigmatized or shunned. But, in effect, they are (think lepers). And Appleman argues that, with regards to our (mostly poor and minority) prison population, we treat them exactly like diseased individuals:
The TB flyer has much more in common with Paris Hilton than with the average inmate, in terms of money, power, opportunity, etc. Yet we furiously shun him and criticize his (potentially dangerous) actions with the same vigor and rage that we exhibit towards convicted felons. Both are loathsome to us, unable to be rehabilitated, best off quarantined away from us, permanently.

....Our criminal system today has no second chances for anyone who's been convicted of a felony; once you have this stain on your record, you are essentially isolated from the larger community. We allow no opportunities for restorative justice to our convicted offenders, who are primarily poor and often minority. By having such a rigid, "no returns" policy, we cut off a substantive segment of our society, barring them from participation in the polity. In that sense, having a felony conviction is very much like having an incurable, communicable disease. Either way, we want no part of you.

This is true, and distressing. When you permanently isolate someone from society--over and beyond the time they serve as punishment--they often have no other choice but to return to crime. They need to eat, they might have children to take care of, and the stigmatizing effect of having a criminal conviction means they are permanently locked out from a job with any real opportunity. What do we do with these people? The status quo is not feasible at this stage--and that would be true even if prosecutions weren't arbitrary, if the system wasn't biased, and if the drug laws weren't stacked against minorities. With all those factors taken into account, the leperization of folks committed of a single, often non-violent, felony becomes outrageously unjust.

The Response Brief Should Be Classic

After falling while giving a speech, Judge Robert Bork--tort reform zealot and unabashed judicial conservative--is suing for $1,000,000 in compensatory damages, plus punitives.

I wish Judge Bork a quick recovery from his injuries. That being said, I hope his lawsuit goes down in flames--preferably with citation to his own articles and opinions.


Thursday, June 07, 2007

FRC Comes Out In Favor of Southwick

I'm hoping to interview someone at the Family Research Council this summer, as part of an article I'm writing for a college publication on conservative organizations in America. The FRC, I'm sure, would argue that predominantly liberal colleges, who get their news from the liberal MSM, don't get a fair portrayal of groups such as theirs. Which is why I want to give them an opportunity to voice their own positions in their own words.

One thing that I, personally, am curious about, is if there is any policy, law, action, or nominee that they would oppose from the left. I don't mean to say that the FRC is infinitely conservative--I'm sure there are things that are right-wing enough that they would not support them. But I have scarcely seen them publicly come out against (rather than, perhaps, privately withhold support from) a politicallly salient policy or action. Their statement on the judicial nomination of Leslie Southwick is a key case in point. Southwick is, shall we say, controversial for some of the positions he's taken as a judge. The FRC characterizes the furor thusly:
However, these last few months have allowed groups like the pro-homosexual Human Rights Campaign (HRC) the time they needed to comb through Southwick's 7,000 rulings for anything remotely incriminating. So far, they have only produced two weak examples of so-called "intolerance." One was a case in which Southwick voted to give the custody of a child to her father rather than her lesbian mother because of the mom's conduct.

They don't mention what the other is. My guess, however, is that the other "weak example" refers to this case, where Judge Southwick joined an opinion holding that calling someone a "good ole nigger" was not a racial slur, and that by firing someone for making it, the state Department of Human Services was acting in an "arbitrary or capricious" manner. It's difficult to imagine a more extreme position. And yet the FRC thinks the folks opposing Southwick's nomination are engaging in a "witch hunt"? Spare me.

Ten Greatest American Political Thinkers

Because lists are fun!

"Political thinker" is defined broadly. List is created without much serious thought--I'm sure there are obvious omissions which you are perfectly free to debate about in comments. Obviously, it reflects personal political biases of mine as well.

To the list!

Honorable Mentions (no order):

Angela Davis, Professor, University of California (1944-present)

Alexander Hamilton, Treasury Secretary, (1755-1804)

bell hooks, Professor, Berea College (1954-present)

Michael Sandel, Professor, Harvard University (1953-present)

Henry David Thoreau, Writer, (1817-1862)

10. Abraham Lincoln, President (1809-1865)

9. Thomas Jefferson, President (1743-1826)

8. Robert Nozick, Professor, Harvard University (1938-2002)

7. John Rawls, Professor, Harvard University (1922-2002)

6. Iris Marion Young, Professor, University of Chicago (1949-2006)

5. Fredrick Douglass, Writer & Orator (1818-1895)

4. Martin Luther King, Jr., Reverend (1929-1968)

3. John Dewey, Professor, Columbia University (1859-1952)

2. James Madison, President (1751-1836)

1. W.E.B. Du Bois, Professor, Atlanta University (1868-1963)

Tuesday, June 05, 2007


I'm pretty sure I actually use Expedia, but whatever. Today's the travel day. My flight is around noonish, I get into D.C. mid-afternoon, have my brother's graduation on Wednesday, and then it's nothing but endless summer.

See you on the flip!

Monday, June 04, 2007

Throw The Bums Out

Democratic Representative William Jefferson (LA), somewhat notorious after being caught on film taking bribes and then having the FBI find the money in his freezer, has just been indicted. The only surprise is it took this long. And, like the good folks at dKos and Carpetbagger, I have no qualms in saying its time for him to go. If he has any decency, he should resign.

But what if he doesn't? Politicians are known for stubbornness, and Jefferson has not shown himself to be the cooperative sort on this issue in the past. Mark Kleiman has the answer:
T]here is Constitutional authority to expel a member, by a two-thirds vote. Jefferson, along with several of the not-yet-indicted Abramoff/MZM crooks, ought to be called before the Ethics Committee and asked under oath where the money came from. He would have the right to plead his Fifth Amendment privilege against self-incrimination, on which the Committee would have the right to draw the appropriate inference and recommend his expulsion.

No, this isn't a violation of the principle “innocent until proven guilty.” The question isn't criminal guilt, it’s fitness to serve in the House. Whether Jefferson, Doolittle, et al. go to prison is up to the prosecutors and the courts. Whether they continue to make our laws is up to the House of Representatives.

Jefferson is quite corrupt, and certainly deserving of expulsion. But he's not the only one--there are serious allegations surrounding Reps. John Doolittle and Jerry Lewis (R-CA) as well, and I know there are others. But let's just take Doolittle, as he's probably the most serious case. Put them both in front of the committee, make them both testify, and if they aren't able to provide some good answers, vote to expel.

Democrats, of course, don't have the two-third majority by themselves to get Jefferson and Doolittle out. But therein lies the beauty. If Republicans vote to expel both, great--we've gotten rid of two corrupt Congressmen. No loss. But if Republicans vote to expel Jefferson, but not Doolittle, it will look like they're covering their own, thus solidifying the "culture of corruption" meme as a GOP problem while the Democrats show themselves as firm and intolerant of corruption, even in their own ranks. And if they vote to expel neither, they'll just look ridiculous.

It's win-win!

How Convenient

Wow, is this revealing:
Doctors adopted the late-term procedure "out of convenience," [Focus on the Family Vice President Tom] Minnery added. "The old procedure, which is still legal, involves using forceps to pull the baby apart in utero, which means there is greater legal liability and danger of internal bleeding from a perforated uterus. So we firmly believe there will be fewer later-term abortions as a result of this ruling."

I'm sorry, I didn't realize that preventing "internal bleeding from a perforated uterus" is merely an exercise in "convenience." I imagine the women undergoing the operation would characterize it differently. But then, since when did Focus on the Family care about what women think?

For a more humane view, see "Why I Provide Abortions", which is heart-wrenching but a must read nonetheless.

UPDATE: More from Marty Lederman and Scott Lemieux.

Sunday, June 03, 2007

Boycotting One's Friends

An interesting article in the UK's Telegraph asks what the media would do had Israeli forces, rather than Palestinians, abducted a BBC crew. Suffice to say, media coverage would be rather different. But I thought the really important point came in the context of the growing "boycott Israel" movement ripping through various British unions:
From the hellish to the ridiculous, the pattern is the same. Back at home, the Universities and Colleges Union has just voted for its members to "consider the moral implications of existing and proposed links with Israeli academic institutions".
The main universities of Israel are, in fact, everything that we in the West would recognise as proper universities. They have intellectual freedom. They do not require an ethnic or religious qualification for entry. They are not controlled by the government. They have world-class standards of research, often producing discoveries which benefit all humanity. In all this, they are virtually unique in the Middle East.

The silly dons are not alone. The National Union of Journalists, of which I am proud never to have been a member, has recently passed a comparable motion, brilliantly singling out the only country in the region with a free press for pariah treatment. Unison, which is a big, serious union, is being pressed to support a boycott of Israeli goods, products of the only country in the region with a free trade union movement.

Universities boycotting the only truly free academic system in the Middle East, journalists targeting the only country in the area with a free press, and unions targeting the only country that has significant, powerful unions smacks of absurdity (to be very, very kind).

Speaking of the boycott, Martha Nussbaum has written a spectacular piece examining whether or not, as a matter of principle, academic boycotts such as this are morally justified (targeting Israeli universities or anyone else). She concludes they are not, in a very tightly reasoned and compelling argument. But there is a tangent to her piece that I wish to emphasize as important. Though she is examining the question of academic boycotts generally, it remains distressing that these discussions occur within a virtual sole locus of Israel:
I am made uneasy by the single-minded focus on Israel. Surely it is unseemly for Americans to discuss boycotts of another country on the other side of the world without posing related questions about American policies and actions that are not above moral scrutiny. Nor should we fail to investigate relevantly comparable cases concerning other nations. For example, one might consider possible responses to the genocide of Muslim civilians in the Indian state of Gujarat in the year 2002, a pogrom organized by the state government, carried out by its agents, and given aid and comfort by the national government of that time (no longer in power). I am disturbed by the world’s failure to consider such relevantly similar cases. I have heard not a whisper about boycotting Indian academic institutions and individuals, and I have also, more surprisingly, heard nothing about the case in favor of an international boycott of U.S. academic institutions and individuals. I am not sure that there is anything to be said in favor of a boycott of Israeli scholars and institutions that could not be said, and possibly with stronger justification, for similar actions toward the United States and especially India and/or the state of Gujarat.

I would not favor an academic boycott in any of these cases, but I think that they ought to be considered together, and together with yet other cases in which governments are doing morally questionable things. One might consider, for example, the Chinese government’s record on human rights; South Korea’s lamentable sexism and indifference to widespread female infanticide and feticide; the failure of a large number of the world’s nations, including many, though not all, Arab nations, to take effective action in defense of women’s bodily integrity and human equality; and many other cases. Indeed, I note that gross indifference to the lives and health of women has never been seriously considered as a reason for any boycott, a failure of impartiality that struck me even in the days of the South Africa boycott. Eminent thinkers alleged that the case of South Africa was unique because a segment of the population was systematically unequal under the law, a situation that of course was, and still is, that of women in a large number of countries. By failing to consider all the possible applications of our principles, if we applied them impartially, we are failing to deliberate well about the choice of principles. For a world in which there was a boycott of all U.S., Indian, and Israeli scholars, and no doubt many others as well, let us say those of China, South Korea, Saudi Arabia (on grounds of sexism), and Pakistan (on the same grounds, though there has been a bit of progress lately) would be quite different from the world in which only scholars from one small nation were being boycotted, and this difference seems relevant to the choice of principles.

In cases such as this, I am of the mind of Dan Markel--such boycotts are good only for the pleasure of flouting them.

The Unbearable Lightness of Federalism

Scott Lemieux puts up a a good discussion on federalism, specifically how little work it seems to do in most arguments. Rare is the public figure--I don't mean academics here, I mean mainstream politicians and columnists--who can really tell you what and why a particular issue should be devolved to the states. Nor is there particularly strong evidence that states do a better job of dealing with the issues that tend to be at the center of federalism, or that we should care about the structural issues above and over the substantive issues in the first place. I've made similar remarks with regards to the last point myself. But in Lemieux's post, I particularly liked the point about how Federalist #10's argument in favor of large, diverse polities has been far more prescient than the pro-federalism arguments in The Federalist Papers.

Finished With Finals!

Okay! I've finished my finals, finally. I don't know if I've ever felt less "in rhythm" with a 6-7 page Political Science paper than this one. But that's in the past now. What's still in my future is packing and storing my stuff for the summer. Not looking forward to that.

I genuinely apologize for not being a good blogger at all over the past few days. And I'm afraid I still might need a bit more time, with the aforementioned packing and storage and travel. My flight home is Tuesday afternoon, and my brother's graduation is Wednesday. After that, I should be in the clear.