One more exam to go. Jill just left to go home for break (she'll be coming to DC for New Years), so I'm all alone.
* * *
Military engineers are pioneering so-called "guilty robots" -- robots with complex ethical programming designed to make them better at following the rules of war than humans.
The Nevada brothel industry is now open to men. It was actually just a technicality that had kept male prostitutes out (they can't get a "cervical exam"), but hey, gender equality!
A great profile in Tablet magazine about Salam Fayyad, Palestinian Prime Minister and the man Shimon Peres calls "the Palestinian Ben-Gurion".
Houston became the largest city in the US to elect an openly-gay mayor.
BRICUP may have invited a racist to speak before them, but don't worry, they were quite eager to justify it through dialogue and explanation.
The bill targeting ACORN grants was ruled an unconstitutional bill of attainder. Adam Serwer reminds us of why it is a bad thing for Congress to appoint itself a quasi-judiciary and make determinations of guilt and innocence in response to popular akrasia.
Obama doesn't have a Jewish problem. Rinse, wash, repeat, until it sinks in.
Subscribe to:
Post Comments (Atom)
14 comments:
I can't remember where it came up, but I think one of your commenters was telling me that there's no need for the aspect of federal hate crimes laws that provides jurisdiction over what would otherwise be purely local crimes, because of course the local folks will prosecute those just fine. True most of the time -- but not always.
PG,
I don't believe that is an entirely accurate summary of our discussion in the Marion Barry entry, because I recall addressing a different aspect of those laws, but maybe you're talking about someone else.
That said it does look like the state did prosecute in this instance, although I'm sure there are better examples in support of the proposition we could point to. Apparently the jury here was terrible, but I don't know that laypeople suddenly become enlightened when they walk into the federal courthouse. (Of course, it could be that local jurors just can't be impartial, but that's really a broader problem with state court systems.)
joe,
The back and forth on the subject went like this:
You said, And as far as consequentialism goes, I can more easily imagine the career damage--itself a large harm--caused by DADT resulting in suicide than I can imagine hate crimes legislation preventing homophobia-based homicide. Do you think the prospect of a third consecutive life sentence would have stopped Matthew Shephard's murder? I don't because it's hard to imagine the type of offender who could be less of a rational actor. Probably only the creation of some sort of Super Death Penalty would make a difference.
I responded, You're treating sentencing enhancement as the most important (or perhaps only) aspect of federal hate crimes legislation. On the contrary, hate crimes laws were first passed not because there needed to be heavier penalties for the generic underlying crime, but because localities lacked the resources or simply refused to prosecute crimes committed against certain disfavored minorities by members of the majority. The federal government responded by classifying these as federal crimes that the feds could prosecute. The original 1969 law didn't impose greater penalties than state laws generally did for the same crimes. The sentencing enhancements didn't come until 1994 with Clinton's tuff-on-crime Violent Crime Control and Law Enforcement Act. So I think you are mistaken about the rationale behind hate crimes law.
You replied, I don't think the other aspects of federal hate crimes laws would really have that big a deterrent effect on people who target LGBT victims. We're not seeing what was going on in, say, Mississippi in the 60s.
I'm saying that failures by local law enforcement did not end in "Mississippi in the '60s," but are an ongoing concern. If you read the article, the problem was that while the prosecutors in the Ramirez case were doing their best, the local investigators (i.e. the Shenandoah police) were engaged in a cover-up. If the evidence offered in court does not indicate beyond a reasonable doubt that the defendants committed a certain crime, there's nothing "unenlightened" about a jury's refusing to convict for that crime.
There is, however, something deeply unenlightened about local police whose own affiliations and prejudices cause them to cover up evidence that may have led to a conviction on those crimes had it been presented to the jury. In the absence of federal hate crimes law, the FBI would have no jurisdiction to investigate, and there could be no federal indictment charging Piekarsky and Donchak with a hate crime for their attack on Ramirez. I strongly suspect that the evidence and testimony at the federal trial is going to be quite different from what happened in the local trial.
As far as the old conversation went, remember we were talking about consequentialism. My point on "other aspects" went to the questionable deterrent affect of improved prosecution (an improvement which you admit in your first comment here to be marginal to begin with). Now there is at least some research and literature going back and forth on deterrence issues, but that's separate from the question of whether there'd be an increase in prosecution or in prosecutorial and investigative competence/integrity (which I don't dispute).
But even though I don't disagree with your basic point, I don't see the story you linked to as the strongest support. It's easier to see the juries prejudices shining through in this case than anything else, based on the limited information provided in the article. I've observed enough juries to know what that simple assault conviction means. It means that the jury didn't really see the victim as an equal entitled to the same legal protections, even though they were convinced as a factual matter that these defendants did beat the kid. I seriously doubt there was any question in their minds whether the injuries from this "simple assault" resulted in the kid's death. They just decided (possibly subconsciously) that it wasn't worth a manslaughter conviction for two white boys. Now, most Americans with racist views don't take it to the extreme of saying "my favored group gets to kill everyone else carte blanche," so I'm sure the jury saw the assault conviction as "splitting the baby."
As for corruption, I'm also not convinced Pennsylvania wouldn't find a way to clean up its own mess in this case if it weren't seen as a job for the federal government.
You have a point that it's probably good the federal government will prosecute these defendants where the state failed, but we have a problem when we look beyond this one case to general rules. As a rule it's only if we're willing to accept the clear double jeopardy here without "separate sovereigns" handwaving.
No, you may have been talking about consequentialism, but I only mentioned it to say "If you're as consequentialist as you claim about the actual effects of their preferences on gay rights, Obama's preference is helping a lot more than Barry's would." You never refuted that comparison at all. (Unless you were implicitly saying that Barry has been a great campaigner for the right of gays to serve openly in the military?)
I'm also not convinced Pennsylvania wouldn't find a way to clean up its own mess in this case
How? The local law enforcement was in cahoots with the defendants to cover up evidence. The defendants were tried and thanks to the cover-up acquitted on the most serious charges. If the state tries them on the same charges it already attempted (third-degree murder, ethnic intimidation, aggravated assault and ethnic intimidation), it's actual double jeopardy. If double jeopardy is a concern for you, it seems like leaving it up to PA is a good way to avoid the defendants' facing any substantial punishment for their crime.
1) Let's not rehash whether I "refuted that comparison" from two weeks ago. I am merely pointing out that you shouldn't take a point consequentialism (i.e. whether certain actions will have a deterrent effect that substantially reduce victimization) to be an assertion one way or the other as to whether "local folks will prosecute those just fine." It may be that, for example, teenagers who are inclined to beat people to death out of bigotry are not likely to pause and consider the increased risk of apprehension or conviction that comes with federal involvement. (In fact, the studies I've heard of suggest that criminals don't think about the risk of apprehension or calculate it quite poorly.)
2) On whether PA is completely powerless: Forgive me some leading questions, but didn't you mention a short time ago that you were associated with the Federalist Society? Don't you think when I say "find a way" I'm suggesting that it's possible if the federal government didn't do this sort of housekeeping that the Pennsylvania legislature might say "Oh, we need to address this problem at the state level because it's all in our hands"? Don't you think the state could empower law enforcement groups that could investigate local agencies without some one-horse town's tinpot Arpaio having a veto? It's not inconceivable to me that PA could or would do that under the hypothetical situation I just described, and on most days I'm for abolishing the concept of state government altogether. Again, I am not saying that this is would be better than the status quo, just that this is not a great test case for some of your arguments.
3) I'm honestly not sure exactly what you're saying about double jeopardy. What I was saying about it is that as a constitutional matter "separate sovereigns" is a weak justification. And you know that this is a broader consideration than we have in just this one crime. There is a lot of overlapping federal and state law. A much better rule would be to simply set aside verdicts when there is a proven cover-up. "Defendant was never placed in actual jeopardy of life or limb because the deck was stacked."
It may be that, for example, teenagers who are inclined to beat people to death out of bigotry are not likely to pause and consider the increased risk of apprehension or conviction that comes with federal involvement. (In fact, the studies I've heard of suggest that criminals don't think about the risk of apprehension or calculate it quite poorly.)
It depends quite a bit on the criminal and what you mean by "calculate." I doubt that a kid who was getting into a pissing match with another young man stopped to figure out the precise risks of his going to jail before he beat that man to death.
However, one's sense of the relevant authorities in one's case can be pretty important. If I only have to care about the norms of authority in my immediate community, and I know that local authority is my buddy and doesn't think much of Mexicans either, that affects my attitude and my sense of what is acceptable. On the other hand, if what those politically-correct amnesty-oriented pinkos in DC have authority over me, that affects my sense of who the relevant authorities and whether I'm as much the beloved, can-do-what-I-want golden boy for them as I am in my town.
Also, if you were not making 'an assertion one way or the other as to whether "local folks will prosecute those just fine,"' what did you mean by We're not seeing what was going on in, say, Mississippi in the 60s.? I took that to mean a claim that we are not seeing failures in prosecution of crimes against despised minorities today as we were seeing in "Mississippi in the '60s," but apparently I misinterpreted that.
Don't you think when I say "find a way" I'm suggesting that it's possible if the federal government didn't do this sort of housekeeping that the Pennsylvania legislature might say "Oh, we need to address this problem at the state level because it's all in our hands"?
The federal government pretty much stayed out of all these things for the first 150 years of our nation's existence, with a quasi exception for the 10 years following the end of the Civil War. Do you have any empirical basis for your belief that state governments are likely to "find a way" (and I'm still unclear on what you think the PA government could do in this case) based on that history? My understanding of that history is that the federal government only acted, reluctantly and limitedly, when state government were not taking care of their problems. Precisely because we started from a default of limited federal power, increases in federal government action are generally coming in response to a deficiency by the states. I don't understand why you're speaking about a hypothetical world in which state governments would act if only the feds would leave them alone, when we've a perfectly good historical world in which that was the case.
What I was saying about double jeopardy is that you don't seem to have any actual solution to this particular problematic case in mind. You don't think the federal government should be trying the defendants on federal charges, but you're also claiming to be opposed to double jeopardy, which precludes the state government from re-trying them.
So what do you propose to do, in the absence of a rule that says if there was a proven cover-up by law enforcement, acquittals can be revoked? (Which in cases with a statute of limitations -- i.e. non-murder cases -- will create its own problems, if you have a conditional court-proven cover-up to get through before you can reach the original underlying crimes.)
On the other hand, if what those politically-correct amnesty-oriented pinkos in DC have authority over me, that affects my sense of who the relevant authorities and whether I'm as much the beloved, can-do-what-I-want golden boy for them as I am in my town.
I doubt the criminals you are describing are not politically savvy enough to note who exactly the "relevant authorities" are, especially at the time of the crime. And even if they largely were, I fail to see the relevance unless you can also show actual deterrence. And not in the Deep South a few decades back. Today, in Pennsylvania. Myself, I doubt there's a measurable effect, and if there isn't then it's not a big Obama accomplishment for gay rights (from a consequentialist standpoint).
I don't understand why you're speaking about a hypothetical world in which state governments would act if only the feds would leave them alone, when we've a perfectly good historical world in which that was the case.
Because history isn't destiny. I'm not too worried about what happened 100 years ago for purposes of figuring out the best way to structure the law today. I doubt, for example, that defendants like this would even be tried at all in many state courts 130 years ago, even without a cover-up. So obviously these historical analogies have severe limitations.
What I was saying about double jeopardy is that you don't seem to have any actual solution to this particular problematic case in mind. You don't think the federal government should be trying the defendants on federal charges, but you're also claiming to be opposed to double jeopardy, which precludes the state government from re-trying them.
Well I already said double jeopardy jurisprudence is messed up, so I'd say change it and spell out those extreme cases where re-trying someone after a final judgment is appropriate (with a tolling period for the "cover-up" hearing if necessary; and I'm sure brighter legal minds than mine could come up with other fixes to problems you might raise, especially if they're not casually blog-commenting when the commercials to King of the Hill come on). And as I said, I'd be happy if all criminal prosecutions were federalized; I'm just saying pick your forum. You can't have both and the Fifth amendment to boot, in my opinion.
You don't seem to be arguing that I'm wrong as a constitutional matter as far as I can tell. But you seem to be suggesting that basically we shouldn't care about stopping double jeopardy at all because it might lead to results you don't like in some cases. So I'm kind of at a loss about that.
And I still think we have a fallacy of many questions here because you're claiming this is an instance where the federal law operates to ensure a proper conviction. But I already pointed out how this is obviously a bad jury, and I don't see how you can claim otherwise unless you are seriously claiming the manslaughter acquittal came about because the cover-up here just went to causation (i.e. a reasonable jury, based on the evidence presented, could not conclude that the assault--which they did conclude happened--resulted fatal injuries to the victim). Since you dropped this point I'm guessing you quite rightly don't claim otherwise. And that was my original point: this is simply not a good test case for your arguments. Find me a recent case where, say, South Carolina decides not to prosecute the killer of a gay man based on political indifference to the victim and we'd have a different ballgame (not necessarily that there's much deterrence the federal government can bring to the table, but at least there it's a clear example of the state being unable to act).
And that brings me back to the "1960s Mississippi" quote. I was speaking in aggregate terms. My South Carolina example might be similar in severity, and I don't even think it's unlikely there's a recent case much like it, but in terms of scope I suspect the Jim Crow South was a lot worse.
Brief addendum on double jeopardy: I suppose perhaps you're just arguing that separate sovereigns is a good workaround in some situations. But I can't accept that because it's not an exception; it's a rule. Two trials for everyone if we decide to federalize a crime! If we want to stick to the constitution (and there are very good pragmatic reasons to uphold a right that keeps the dockets from clogging even more) we need a narrower approach to the problem you've identified.
I doubt, for example, that defendants like this would even be tried at all in many state courts 130 years ago, even without a cover-up.
Your doubt being based on...?
You don't seem to be arguing that I'm wrong as a constitutional matter as far as I can tell. But you seem to be suggesting that basically we shouldn't care about stopping double jeopardy at all because it might lead to results you don't like in some cases. So I'm kind of at a loss about that.
I haven't read enough about double jeopardy to argue in a tone of certainty whether you're wrong as a constitutional matter for saying that the separate sovereigns doctrine violates the 5th Amendmnent. I think you probably are wrong, given that
(1) the Supreme Court has OKed it for almost 100 years (indeed, longer than SCOTUS has even applied the Bill of Rights to the states; see, e.g., U.S. v. Lanza, 260 U.S. 377 (1922) ("It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government")); and
(2) The Justice Department follows a policy of generally not duplicating a state prosecution brought and carried out in good faith, see Petite v. United States, 361 U.S. 529, 531 (1960); Rinaldi v. United States, 434 U.S. 22 (1977).
As for tolling in a criminal matter, that's very rare and, as similar to tolling in civil matters (e.g. Delaware law recognizes three potential sources of tolling: (1) the doctrine of inherently unknowable injuries; (2) the doctrine of fraudulent concealment; and (3) the doctrine of equitable tolling), generally depends on malfeasance by the defendant to come into play. So far as I know, under federal law a criminal prosecution can be tolled only during periods of fugitivity (18 U.S.C. § 3290), which would be the fault of the defendant for being fugitive; and during the pendency of an official request to a foreign court or authority to obtain evidence located in a foreign country (18 U.S.C. § 3292). Tolling a criminal prosecution because law enforcement screwed up would be a pretty new kind of tolling.
But I already pointed out how this is obviously a bad jury, and I don't see how you can claim otherwise unless you are seriously claiming the manslaughter acquittal came about because the cover-up here just went to causation (i.e. a reasonable jury, based on the evidence presented, could not conclude that the assault--which they did conclude happened--resulted fatal injuries to the victim).
You have your insight to the hearts and minds of 12 men and women you've never met, so you can be sure that they're all indifferent to the life of a Mexican immigrant. I thought perhaps in the absence of police evidence that the defendants were armed and that they had started the fight, and the fact that the assailant who says he delivered the blow that left the victim unconscious was a juvenile who cut a deal, jurors might have genuinely had a reasonable doubt that the two adult defendants in this case had the requisite mens rea of malice (consciously disregarded an unjustified and extremely high risk that his actions might cause serious bodily injury) to be convicted of 3rd degree murder. If you're going to consider the defendant who kicked the victim to have been using a dangerous weapon, we're in the same line of reasoning that had the Jena 6 being charged with attempted murder because a tennis shoe is a dangerous weapon.
The Jim Crow South frequently did bring prosecutions for lynchings and other crimes against African Americans. Emmitt Till's murderers, for example, were prosecuted. The prosecutors called witnesses and otherwise seem to have done a competent job. But the defendants were acquitted, and had Sheriff H.C. Strider locking up witnesses in jail to keep them from testifying against the defendants. They were paid by Look magazine to tell their story, and they confessed their crime after acquittal because they didn't have to worry about any federal prosecution back then.
Your doubt being based on...?
This. I believe it refers to events within the last century too. But I'm to tired to go back and check.
http://www.cacwv.org/projects.php
In fact, that sort of thing was precisely why there was a movement for federal anti-lynching laws in the first place. And rightly so. It's just not a very analogous situation to the case we're talking about.
You have your insight to the hearts and minds of 12 men and women you've never met, so you can be sure that they're all indifferent to the life of a Mexican immigrant.
I'm not psychic, but I don't need a crystal ball to know the way the world works. I sincerely doubt, were the evidence the same and the race of the defendants and victims reversed, that we'd see an acquittal on the manslaughter charge (IMO third degree murder is a ridiculous term and Pennsylvania should feel ridiculous for using it).
(1) the Supreme Court has OKed it for almost 100 years (indeed, longer than SCOTUS has even applied the Bill of Rights to the states; see, e.g., U.S. v. Lanza, 260 U.S. 377 (1922)
Oh I'm sure I take the minority view here, if I can even call it that. But I don't see anything in the Fifth Amendment's text saying "unless it has some effect on the price of milk in Peoria making it interstate commerce and Congress decides the U.S. Attorney should get another crack at it!" And yes, we've done things a certain way for a long time, but so what? I'd also say that incorporation is precisely why we should throw this practice out. Given the plain meaning of the Fifth it only makes sense that federal and state prosecutions be merged for double jeopardy analysis.
(This is all because of the continued farce of state government, a relic that we're stuck with because almost the only changes to our constitution come from the judiciary plugging doing its damndest to plug the holes in the ship of state.)
Tolling a criminal prosecution because law enforcement screwed up would be a pretty new kind of tolling.
I see no reason why criminal defendants should benefit from the malfeasance of police on their behalf when we have suppression hearings to keep them from suffering for malfeasance against their interests. Especially as an alternative to a trial system that violates the Bill of Rights on its face.
Post a Comment