Saturday, April 05, 2008


I've been tagged by Liberal War Journal. It's one of those "random facts" memes. I have three friends in the room to remind me of random things about myself, so lets take a whack.

The Rules:

I. Link to the person who tagged you. (See above)

II. Post the Rules Here.

III. Share Seven Random or Weird Facts About Yourself:

1) Though I touch type, I only use my index finger on my right hand (my left hand has normal form). In spite of this, my typing speed is around 90 wpm.

2) I'm ranked among the top 300 in Prolific (the Facebook boggle application). There are over 52,000 players.

3) I wanted to be a cartoonist when I was a kid, until I discovered I had no artistic talent. A similar revelation quashed my next dream, to be a computer programmer.

4) I won the Princeton debate tournament (Student Congress) my senior year of high school.

5) I played varsity ice hockey for three years in high school, playing starting left bench.

6) I still conceptualize people taller than me as "big kids" who are older than me. This is a problem considering that I'm only 5'8".

7) I wear a particular green windbreaker nearly every day, indoors and out, no matter the temperature (unless its really hot or really cold).

IV. Tag 7 random people, linking to them:

My girlfriend, Jill

The other person I know who has an LJ, Julia Iowa

Sarah Toews

Matt Cole



And finally, the resurgent PG

V. Leave a comment letting them know you've tagged them. [no]


From The Archives helps Berkeley Law School out with some potential public statements on why torture-architect John Yoo remains on faculty. Examples

Dude. We love torture and wish we could crush the testicles of small children personally, but our dirty hippie neighbors won't watch our houses for us when we go on vacation if we do. Prof. Yoo is our man!

It is too bad that we can't follow the train of causality between Yoo's memo and establishing a novel torture regime in the United States. These things are so complicated and all he did was write a memo. If only there were some discipline, some field that deals with responsibility for crimes, how to weigh those and what the penalties should be. But since there isn't, we don't know what to do. I guess we'll just do nothing!

Ezra Klein addresses the "tenure defense", arguing that "tenure doesn't protect those with unpopular ideas, it just makes them harder to fire, and thus raises how unpopular an idea has to be before it merits termination." So, he hypothesizes, making dumb arguments about tax cuts for the rich being the awesomest stimulus plan ever, not worth our time. Advocating killing the Jews? See you later!

I dunno. I feel like realistically, that's how tenure works (c.f., Churchill, Ward). But only to some degree (I mean Tony Martin managed to make it into normal retirement last year). And ideally, tenure gets superseded not by really bad ideas, but by actual acts of scholarly or personal misconduct. Has Yoo met that threshold? I don't know.

Following Up Engagement

Remarking on the burgeoning electoral crisis in Zimbabwe, Matt Yglesias writes:
One would hope that, at this point, some good might come of the controversial "engagement" approach taken by South Africa and others where African heads of state might indicate to Mugabe that a further crackdown at this point would be unacceptable.

But isn't this the problem? I lean towards engagement policies over isolationism, if for no other reason than the latter doesn't seem to have an end-game to me. But it does always seem that the countries who "engage" with dictatorships, with the purported justification that it gives them more leverage, are never actually willing to step up and put the hammer down. And so we get stalemates like this one.

I guess it's better that someone probably could step up and force an end to the Zimbabwe crisis than for there to be literally nobody the international community could turn to. But that's pretty weak sauce when that someone refuses to step up to the plate.

Friday, April 04, 2008

Knowledge and Punishment

Orin Kerr links to a story of a New York federal judge who, bucking long-standing precedent, is now holding that jurors need to be informed of mandatory sentencing guidelines prior to their determination of guilt and innocence. Kerr predicts the ruling will quickly be reversed, as it flies in the face of well-established precedent that's existed for a good 100 years. But that doesn't make the question any less interesting.

This is one of things where how we idealize jury deliberation runs headlong into how I imagine jury deliberation actually works. Ideally, the punishment bears no relevance to the question of guilt or innocence. They're separate questions. In reality, I'd imagine that jurors would be more willing to fall on the "guilty" side of that fuzzy reasonable doubt line where they think the punishment is not too harsh, and rule "not guilty" when the punishment feels strongly out of line with what they think is deserved. When that information is not present, the jurors don't just have a blank slate; they instead fill in their mental gaps with an assumption of what the punishment is that correlates to how severe they imagine the crime to be.

Where this ruling does implicate "idealized" jury functionality is in the realm of jury nullification. If one does believe that juries should be allowed to nullify because they view the underlying law as unjust, the sentencing range of the law is clearly relevant information. Many people who don't have a problem with drug criminalization per se still find gross injustice in the wildly overinflated sentences drug convictions bring. Knowledge of those guidelines could lead to more nullifications and potentially reform of the law.

It's a Hobo's Life For Me

Well, I got turned down from that job I interviewed for (to be fair, I walked out of the interview thinking "Gosh, did I ever bomb that!"). I still have a few other applications outstanding, but thus far it looks like a hobo's life for me this summer.

My girlfriend, by contrast, has numerous well-paying prospects on the line. Maybe I'll just learn how to cook for her while she goes out and wins the bread. I'll put it on my resume as a summer spent subverting gender norms.

Thursday, April 03, 2008

Carson's Choice

Newly elected Rep. Brad Carson (D-IN) has now become the second Muslim in Congress, after Keith Ellison. Ed Stattmann approvingly comments on his decision to swear his oath on the constitution, rather than a religious document:
Consider all the lies and half-truths we hear from politicians. Swearing upon the Constitution to uphold what it says keeps the ceremony one in which government stays free of religious entanglement and religion stays free of potential political hypocrisy. Rep. Carson provided a precedent for future office winners of minority religions, be they Muslims, Hindus, Buddhists, Wiccans or Jewish Humanists.

Good thought, but why only for adherents of "minority religions"? After all, by and large it's the majority creed that is trying to entangle religion and government. Presumably, they're the one's who need reminding of what they're swearing to uphold.

And Now For Something Completely Different

I like this Matthew Yglesias post, because it implies that the only reason he's even bothering to engage with a lightweight like Mark Krikorian is because he's branching out into topics beyond immigration (needless to say, his point remains inane).

Reading the post, I am struck by a wave of confusion as to whether conservative foreign policy means isolationism again. I mean, for a long time it did, but then we've spent most of the past seven years listening to the right tell us that no country is too small of a threat to be ignored as a potential invasion target. Maybe the pendulum is racing back to the old form of extremism? It's kind of like democratization -- neo-conservatism crashed headlong into decades of happily supporting thuggish dictators, and every once in awhile the right gets confused about which cliff they're demanding we jump off.

Don't Vacation In The Hague

Jack Balkin links to a Vanity Fair article pointing out that, even though the Military Commissions Act insulates our interrogators from domestic prosecution, this actually makes them more vulnerable to being indicted by international war crimes tribunal.
Those responsible for the interrogation of Detainee 063 face a real risk of investigation if they set foot outside the United States. Article 4 of the torture convention criminalizes “complicity” or “participation” in torture, and the same principle governs violations of Common Article 3.

It would be wrong to consider the prospect of legal jeopardy unlikely. I remember sitting in the House of Lords during the landmark Pinochet case, back in 1999—in which a prosecutor was seeking the extradition to Spain of the former Chilean head of state for torture and other international crimes—and being told by one of his key advisers that they had never expected the torture convention to lead to the former president of Chile’s loss of legal immunity. In my efforts to get to the heart of this story, and its possible consequences, I visited a judge and a prosecutor in a major European city, and guided them through all the materials pertaining to the Guantánamo case. The judge and prosecutor were particularly struck by the immunity from prosecution provided by the Military Commissions Act. “That is very stupid,” said the prosecutor, explaining that it would make it much easier for investigators outside the United States to argue that possible war crimes would never be addressed by the justice system in the home country—one of the trip wires enabling foreign courts to intervene. For some of those involved in the Guantánamo decisions, prudence may well dictate a more cautious approach to international travel. And for some the future may hold a tap on the shoulder.

Recognizing Ilya Somin's concern about allowing international law to override domestic law when the legal norms are primarily promulgated by non-democratic regimes, it is worth reminding ourselves that the rules which apply here are primarily of American origin, used to prosecute Nuremberg after WWII.

The Old Standby

I don't know why this always works, but it does:

I decided to go up to the young female students who were passing out their "genocide leaflets" to the students walking by and chat.

I asked each one if they wanted to overturn Roe vs. Wade and make abortion illegal. They all said yes, of course. I asked them if abortion was murder. They all said yes, of course.

I then asked each of them, once this is made illegal, what the preferred prison sentence should be for a woman that has an abortion.

The first girl I talked to seemed bewildered by the question. She literally had never thought about that before. She was willing to stand in front of these horrible pictures and accuse people of murder and genocide, yet she had never even thought what type of penalties women would get if this was made illegal. She looked like a deer caught in the headlights, so I let her go to ponder just what in the hell she's doing out here.

And so on and so forth. You'd think someone in the pro-life movement would have figured out this paradox by now.

Actually, I suspect there are some pro-lifers willing to take their position to the logical conclusion and support long prison sentences (or capital punishment) for women who have abortions. But there are definitely others who are not willing to hold that. What's missing is a terribly compelling reason why.

Also, "Bare Foot and Progressive" is a fantastic name for a blog.



The Comics Curmudgeon reflects on grad school:
"When I was in graduate school, my roommate and I decided to celebrate some minor life victory (and when you're in graduate school, every victory is minor)...."

I haven't made a decision on my future. In fact, I can't, seeing as there are certain schools that still have yet to make a decision as to whether I'll get to make a decision on them. I would say that if they don't hurry up, I'll have to forget them, but that's a lie: one I would attend in a heartbeat even if they accepted me a day before classes began, and the other I'd at least consider dropping my deposit for.

Wednesday, April 02, 2008

What Is Our Dysfunction?

What is it with the Maryland judiciary? Normally, I love my home state. But for some reason, our courts seem utterly incapable of acknowledging that women have bodily autonomy and a right not to be abused. First, they held that a woman couldn't withdraw consent for sexual intercourse after the initial act of penetration, because the only actual harm of rape is the "deflowering". Then a judge dismissed a case where a cop had observed a man assaulting his girlfriend because some people enjoy sadomasochism. And today, we hear of a delightful case where a woman was denied a restraining order against her mentally instable husband who had threatened to kill their kids because she was "still having sex with him." The problem? The woman had testified that
she had sex with her husband because she was frightened of him and was worried that if she didn't, he would "assume something was wrong" and suspect that she was trying to get a restraining order against him.

This is in the news because the kids now are, in fact, dead -- drowned by this woman's husband before he attempted to commit suicide.

One can call this case a tragedy, and it is, but it's also emblematic of Maryland's failure to adequately protect woman who are in dangerous and abusive relationships. Often times, abuse is difficult to combat because the victims don't seek help. This woman did, and was stymied at every turn.

Via Feministing

Racial Dialogue: A Cynical Prediction

Here. Via Rachel's Tavern.

Should We Allow Prisoners To Vote?

A few days ago, I wrote a post on what I termed "quiet injustices" -- things that pretty clearly implicate questions of ethics and morality in our society, but yet rarely seem to bother us. My main example was D.C. disenfranchisement. Another is felon disenfranchisement (after their sentences have been served). Neither, I think, is in any remote way justifiable, and neither are particularly salient political issues.

But the more I think about it, the more I question whether even disenfranchising felons while they're in prison is justifiable. So, I've decided to spend some time exploring that issue.

In the field of legal philosophy, there are two primary justificatory models for why we can punish criminals. The first is "utilitarian"; we punish people because it leads to better social outcomes when we do. Deterrence, for example, is a utilitarian consideration, as is preventing the criminal from committing more crimes. The second model is "retributive"; essentially, giving criminals their just deserts. Those who commit crimes deserve to be punished (to varying degrees, depending on the crime). But the flip side of the retributive model is that you can't punish people more (or less) than they deserve, even if society would benefit (from the deterrent aspect, say). Hence, the two models are somewhat in tension with each other. Sometimes, society as a whole would be better off if a criminal was punished more (or less) severely than they "deserve". In such situations, we are forced to pick which model we prefer. Hence, I'll analyze prisoner disenfranchisement under both models, then examine several additional pragmatic considerations outside punishment theory that might advise against allowing prisoners to vote.

I. The Utilitarian Model

The utilitarian position forces us to weigh the benefits of prisoner disenfranchisements against its costs. We'll start with the costs, which should be obvious: denying someone the franchise is an extraordinarily serious breach of normal civic procedures. The harms are aggregated when it is a particular class of individuals (in this case, prisoners) who are so disenfranchised, because whatever interests they have as a class will be erased from our collective deliberations. And prisoners do have several exceedingly important interests that deserve hearing: combating prison rape and prison reform more generally, the availability of reintegration programs for non-lifers, even the simple mechanisms to prevent family dissolution during imprisonment. Moreover, prison disenfranchisement leads to the 0/5 compromise wherein mostly minority prisoners are transferred to White locales, who then gain increased voting power without additional voters. This creates a perverse incentive to deliberately jack up the incarcerated population, particularly via laws which target minority populations, and has the effect of creating unjustifiable asymmetries in political power, privileging White communities over communities of color.

The benefits of punishment in general, in the utilitarian model, are those of deterrence, and pre-empting potential future criminal activity by the imprisoned person. But outside cases where the crime itself is election-related (and in those few cases, I think disenfranchisement is justifiable), neither seems to apply. Allowing prisoners to vote would not give them any more opportunity make it any more likely that they will commit more crimes. Indeed, if anything it may make it less likely: insofar as criminal activity is positively correlated with marginalization from general social practices, integrating people into socially mainstream acts (such as civic participation) should be a bulwark against recidivism. Deterrence, too, to be inapplicable -- I have trouble imagining the prospective criminal for whom prison is not a deterrent, but loss of voting privileges is. Whatever marginal gain (if one exists at all) in deterrent force disenfranchisement offers is more than outweighed by the aforementioned costs.

II. Retributive Model

The retributive model allows for punishment as "just deserts" for criminal activity. This, obviously, is a bit fuzzy: what is "just deserts"? Obviously, we can recognize the poles: death for jaywalking is not just deserts, nor is a fine for murder. But there still remains the "how many grains of sand make a pile" problem. The line at which a punishment becomes too severe or not severe enough is blurry and contested.

However, one thing that can aid us in the present discussion is that we have, by and large, at least a metric for measuring the relative severity of punishments: prison. We can debate which crimes are the worst, and we can debate where each crime should specifically be placed on the spectrum. But we do agree that, abstractly, the worse the crime, the longer you (deserve to) spend in prison. And in the public imagination, that sentence is exhaustive of just deserts. Simply put, I think that the decision on imprisonment length alone is the reflection of what we imagine just deserts to be.

Consider a crime that we all agree should, in our status quo system, be punished by 20 years in jail. Imagine now that we agree that the prisoner should be enfranchised while he's serving his sentence. Do we now think the sentence should be 30 years instead of 20? If we do not believe that (and I don't think most people do), then we're implicitly saying that enfranchisement/disenfranchisement is not part of our internal weighing mechanism for determining just deserts. And if it doesn't meet that threshold, then under the retributive framework it is not a punishment we can legitimately impose on offenders.

Of course, one might take the opposite stance on my hypothetical, and say that both factors (enfranchisement and sentence length) are relevant considerations for measuring just deserts. At that point, the question shifts to whether disenfranchisement is an inherently unjust punishment. For example, if in the previous hypothetical we replaced the variable of "enfranchisement" with the variable "tortured daily", I might agree that we should adjust the sentence length downward to make up for the increased severity of the punishment. But prior to that I'd hold that torture is not a just punishment -- inherently it can never be considered part of just deserts, because it represents a extreme violation of human dignity. The question is whether voter disenfranchisement occupies a like category. I think that there is a solid argument that it does. Voting is an absolutely bedrock, fundamental part of being a person in a democratic citizenry. To be barred from voting is to be rendered a non-person in our political community. Whatever else prisoners are, I think they remain persons and citizens. They are not "men without countries", and they should not be treated as such.

This, I recognize, is more of a judgment call. But particularly since I believe we can affect just deserts via imprisonment alone, without disenfranchisement, I do not believe we have good grounds to add disenfranchisement as a punishment options outside of very special circumstances (where the felon's crime was election related).

III. Pragmatic Considerations

Having dealt with the question at a level of theory, the final issue is whether there are any pragmatic bars that would advise against allowing prisoners to vote. I think a few present themselves, but they do not strike me as sufficient to outweigh the arguments laid out above.

The first potential problem is both the most intuitively obvious (to me, anyway) as well as the most easily dispatched. That is that prisoners, already having demonstrated themselves to have anti-social tendencies, will vote for policies that sanction their sociopathic activities (i.e., all the robbery inmates will get together and vote to legalize robbery). This strikes me as an unfounded fear, in part because I don't actually think most robbery convicts actually believe that robbery should be legal, but primarily because there aren't enough prisoners to accomplish such an end. Prison enfranchisement is important because it allows prisoners to form political alliances with like-minded interest groups who also are concerned with their problems. But while there are voices on the outside who care about the problem of prison rape, there are very few, I'd imagine, which believe we should legalize robbery. The only way this could be circumvented is if prisoners actually became a democratic majority, in which case I'd argue we have bigger problems on our hands. Particularly since I think prisoners should still be considered "residents", for voting purposes, of their hometowns, and not where the prison is located, it strikes me as unlikely that prisoners will ever gain a working democratic majority.

The second potential problem is that of independent agency in a prison environment. Prison is a institution of power and control, both among prisoners, and between the guards and the prisoners. But voting demands the free exercise of one's own autonomous faculties. This creates tension. But I think the tension can be overcome. The biggest risk for intimidation comes where the prisoners are all voting in the same jurisdiction. But where the prisoners are spread out of many jurisdictions (because they hail from different hometowns), the potential for adverse influence dissipates. It doesn't go away entirely (statewide and national elections will see significant overlap in interests), but then again, the potential for voter intimidation always exists anyway. So long as ballots are secret, the risk strikes me as minimal.

The third potential problem is how to organize an election in prison. Prisoners should be given access to news, so they can make informed decisions (I do not think utter isolation from current events is justified by either utilitarian or retributive considerations). And since I envision the prisoners as being registered in their home jurisdictions, rather than residents of whether the prison is located, the election itself would be standard absentee ballot fare.

IV. Choice of Punishment: A Middle Ground

A middle ground option, alluded to early, that exists within the retributive framework would be to give prisoners an option of taking a reduced sentence that includes disenfranchisement, or a lengthened sentence that allows one to vote. But that would entail figuring out an exchange rate between enfranchisement and time-served (how many years of a sentence is the right to vote worth?). Pragmatically, it is simpler to use prison length on its own as a metric of just deserts. Moreover, insofar as a just democratic polity incorporates (to the greatest degree possible) the voices of the entirety of the citizenry, we should promulgate policies that encourage people to vote, and be particularly wary of discouraging voting amongst particular classes or groups of the citizenry. But since I suspect few prisoners would choose voting rights over a reduced sentence, adding voting rights as a punishment consideration would cut against the benefits of inclusion that I've articulated.

V. Conclusion

So in conclusion, I believe that it is difficult to justify disenfranchising prisoners, under normal circumstances, under either a utilitarian or a retributive model of punishment. Furthermore, the pragmatic arguments against prison voting are similarly lacking in merit. Meanwhile, allowing prisoners to vote would benefit society by making it more democratically legitimate, by including pertinent voices on deliberations of great social import, and even by potentially reducing recidivism rates.

How Can We Function Like This?

Continuing to demonstrate that she's smarter than most other human beings, Samantha Power had this to say about the UN in a recent interview:
HK: Do you think the UN is a functional organization?

SP: This is a distracting point. Not fully functional, no. But the UN’s dysfunctions are less the problem of the organization as such. They are the problem of governments and what they choose to pursue and neglect. Citizens have the power to make governments act differently; the UN as an organization does not. Sergio’s success would have been more robust, or more frequent, if governments had lined up behind him. Secretary-General Kofi Annan lining up behind him was not the same thing. There are plenty of changes that the UN as an organization can make to decrease its many inefficiencies, but the UN will continue to look dysfunctional until member states decide to prioritize global problems, which will require political pressure from below.

I don't bow to anyone in detesting the UN. But it's problems are essentially a result of the international priorities of member states; specifically, that they're not interested in human rights or democratization in the international sphere. That's as true of the US as anyone else. Certainly, I'm mighty pissed off that countries like China or Zimbabwe or Iran don't pursue a liberal agenda in the United Nations, but that's hardly the UN's fault. And frankly, the US doesn't particularly pursue an agenda of democratization or liberalization in our foreign policy, making our feigned shock that other countries, too, act based on narrow and usually illiberal conceptions of their "national interests" all the more pathetic.

Via Matthew Yglesias

Tuesday, April 01, 2008

Black Conservatism, Redux

Continuing once again on the theme of Black Conservatism, I thought this CNN story (it links to a video report) might be of interest. The subject is a Black Georgia judge who ordered all the Whites out of his courtroom, and proceeded to lecture the remaining Blacks, one-on-one on "how to behave and changing their lives."
"You have to turn it around. It's not the White Man. You are the one committing these crimes...."

On the one hand, this is the typical conservative proposal for Blacks -- they have to take responsibility for themselves, not blame the White Man, fix their own communities. On the other hand, it seems to badly clash with the "color-blind" principle. The point being, again, to demonstrate the cleavages between Black and White Conservatism (and their racial outlook in general). Insofar as the conservatism manifests itself in self-ownership and personal responsibility, communal Black efforts to actualize the principle will always strike White Conservative ears as being color-conscious.

This might explain the somewhat odd (to my ears) lede CNN chose to begin their story -- asking if the judge's actions were "reverse racism" against Whites. I mean, I guess I can see that, but it's a bit of a leap -- that Whites are discriminated against because they can't be there for an intramural conversation within the Black community (about how they need to take personal responsibility and not complain about what White folks are doing, no less!). Indeed, the conservative White anxiety over this sort of proceeding could be highly indicative -- they say they want Blacks to take ownership of their own lives, but they get mighty antsy when that self-ownership means Whites aren't always going to get to be in the room, listening in. These Whites, it seems, aren't quite ready to give up their roles as monitors and overseers. And that creates tension.

Meanwhile, as one of the men interviewed at the end of the segment noted, it's at least as reasonable to criticize the judge for being biased against Black people -- while certainly Black people have to take personal responsibility when they engage in destructive behavior, White people do all of those things too, but it's never considered to be indicative of a racially based pathology. But the Black Conservative would argue that what Whites do, Whites do, and that's no excuse for Blacks to not get their houses in order.

Monday, March 31, 2008

Quiet Injustices

There are many arguably unjust aspects about American society. Some of them are quite hotly debated in the public arena, but others seem to maintain themselves more quietly. For example, I consider the denial of marriage equality to gay and lesbian citizens to be a grave injustice, but it certainly is not absent from our public deliberations about what it means to live in a just America. However, other topics which seem to equally implicate our fundamental values, such as felon disenfranchisement or the status of American colonial possessions (e.g., Puerto Rico, Guam, the Northern Marianas Islands, and yes, the District of Columbia), manage to exist without being the subject of intense public debate.

I say this because, despite being of obvious moral and ethical import, I've yet to read a convincing justification for the current status of the District of Columbia. The last time the topic came up in Congress, the main argument deployed against it was constitutional, not moral. It's not that I don't think constitutionality matters, but it does raise the question -- why not amend the constitution? The point is, there's really no argument that the status quo is radically undemocratic vis-a-vis D.C. (and Guam and American Samoa and the Marianas and all our other colonial possessions). But this is not considered to be a "problem". At least with gay marriage, which I also think is a rather clear case of definitive injustice, the topic is recognized as being within the realm of politics and debate. But nobody is grilling our presidential candidates about whether they support Puerto Rican representation. By and large, even civic-minded voters don't have this issue at the front of their minds. There is no groundswell of outrage that we're depriving millions of American citizens of their voting rights for no discernible reason.

Why not?

Sunday, March 30, 2008

Last Train Home

I'm flying back to Carleton tomorrow (well, today, but in college a day doesn't end until you sleep). Nothing new, obviously, except it's my last time going back. Actually, again, not really, given that I plan to come home for Passover and will inevitably visit some law schools. But again, it's the symbolism of the matter.