Being Perpetually at the Mercy of the Arbitrary Negligence of the State is a Punishment

At the moment, we're seeing two somewhat orthogonal trends developing in conservative legal jurisprudence, both lawless, but in distinctive ways.

The first is an increasing indifference to textualism -- being perfectly happy to manipulate or flatly ignore statutory or constitutional language in order to achieve desired results. Yesterday's Clean Water Act ruling, where the Court held 5-4 that "adjacent" doesn't mean "adjacent" because, well, they don't want it to, is a prominent example. The "major questions" doctrine is another, including the invalidation of OSHA's COVID vaccine-or-test mandate despite the fact that it fell cleanly into the clear statutory language, is another. The Court's recent voting rights jurisprudence, featuring Shelby County's entirely-invented "equal sovereignty of the states" rule, is another. The Court's recent Second Amendment jurisprudence, which has functionally decided the first half of the Second Amendment's text may as well not exist, is a yet another.

The second, by contrast, is a sort of hyper-literal textualism that zooms in so tightly on individual words that it ends up blitzing past how people actually read texts. The opinion striking down mask mandates on planes is one example here; some of the opinions striking down the eviction moratorium fit as well. Though styled as "textualism", this sort of analysis really is a dangerous confluence of putative textualists being bad at reading texts.

Slotting into the latter category is a concurring opinion by 11th Circuit Judge Kevin Newsom in Wade v. McDade, arguing that the Eighth Amendment does not forbid any level of "negligent" treatment of prisoners by prison staff --  not negligence, not gross negligence, not even criminal recklessness.  Judge Newsom's argument is deceptively simple: the Eighth Amendment forbids cruel and unusual punishments. But a punishment, he says, can by definition only be imposed intentionally. There's no such thing as a non-intentional punishment. And negligence, in all of its species, is something less than intentional. Hence:

The undeniable linguistic fact that the term “punishment” entails an intentionality element would seem to preclude any legal standard that imposes Eighth Amendment liability for unintentional conduct, no matter how negligent—whether it be only “mere[ly]” so or even “gross[ly]” so.... So on a plain reading, the Cruel and Unusual Punishments Clause applies only to penalties that are imposed intentionally and purposefully.

At one level, I appreciate Judge Newsom for saying the quiet part out loud here, because normally I'd spend time pointing out that Judge Newsom's position would warrant even the most grotesque acts of wanton disregard for the lives and wellbeing of prisoners. But Judge Newsom is quite happy to endorse (further) converting our prison system into a miniature gulag archipelago, so I guess I can skip that part and move to the textual question: is Judge Newsom's interpretation an "undeniable" inference from the term "punishment"?

And the answer, I think, is clearly "no".

At the outset of his opinion, Judge Newsom analogizes the negligent treatment of prisoners to that of parents and children: "Just as a parent can’t accidently punish his or her child, a prison official can’t accidentally—or even recklessly—'punish[]' an inmate." But in law, "accidental" and "intentional" are not an exhaustive binary. The whole purpose of the negligence and recklessness categories is to account for cases that lie between the pure accident and the specifically envisioned and desired consequence. And that makes sense, because while law contains different levels of "intent", legal fact patterns nearly always blend several of them together. 

Take a case where a speeding driver strikes a pedestrian with his car. Did the driver act "intentionally"? On one level, he was likely intentionally speeding (his foot wasn't literally glued to the gas pedal). On another level, he likely did not intend to hit the pedestrian (he did not seek to mow him down). Negligence captures the interstitial position where the driver intentionally acted in a fashion which foreseeably placed the pedestrian in danger (even if converting the danger into reality was not the driver's motivation). In this, negligence is very different from the pure accident not because it lacks intention, but precisely because of its intentionality.

Swap back to punishment. Imagine a more pre-modern society where we outsource punishment to private actors. I catch you stealing tools from my garage. As a consequence, I strip you of your clothes, take all the possessions you have on you (to make sure you have nothing you could attack me with), and drop you off in the middle of the woods without food or water which I can't be bothered to acquire for you, safely away from my house. You tell me "my pills are in my bag; if I don't take them each evening I might die!" I say "I don't care if you live or die. Oh, and watch out for the forest-dwellers -- they aren't always friendly." You do, in fact, have a seizure overnight and die. Are the actions I took "punishing" you?

Plainly, it seems the answer is yes. And this is so even if I genuinely was apathetic to whether you lived or died. Like the driver striking the pedestrian, my conduct is a mix of the purely intentional (I took your possessions, I dropped you off in the woods) and negligent/reckless (I do not care whether you have a stroke, I do not care if the forest-dwellers attack you). Being intentionally placed in a position where one's custodians do not care whether you live or die is obviously a punishment. Indeed, the fact that it's a "punishment" is the only thing that distinguishes it from pure sadism, abuse, or kidnapping. The fact that the seizure was not specifically intended doesn't change the fact that what happened to you in no way could be described as an "accident". It was the result of intentional actions, and the reason I acted in the way that I did -- with reckless disregard for your life or safety -- was very much tied to my desire to punish you.

In most prison litigation cases, there is similar "intent". The failure to, e.g., give a prisoner necessary medication isn't a wholly-accidental whoopsie-doodle (and if it is, then there isn't even negligence). It is an intentional choice. Indeed, a large part of what prison is, and what makes it such a terrifying prospect, is that it is a place the state sends you where the people who have control of your life do not and perhaps need not care if you live or die. Everything about that is intentional. Or put another way, the pervasive, heartless lack of intention is the intention -- being placed in such a situation is entirely the product of intentional choices at every step of the process.

There's a lot to dislike about the "deliberate indifference" standard which has taken over prison abuse litigation, but one thing it gets right is that indifference is absolutely a choice, not an accident. To fail to treat a person in your custody with requisite care is a choice, and it doesn't stop being a choice just because its foreseeable consequences were not expressly desired.

So what makes Judge Newsom go astray here? He seems to think we should chop up "punishment" into each potential negative experience one might have in prison. Being locked up, and being restricted from the yard, and being deprived of medication, and being placed in solitary, and being put into a cellblock with white supremacists liable to stab you -- each of these are separate (potential) "punishments" whose status as a "punishment" must be assessed atomistically. But this approach defies common sense. When someone is sentenced to prison for a crime, we don't think of it as a loose cluster of twenty or so discrete "punishments". It's one punishment. The punishment is being a prisoner and being subjected to the prison experience. Everything that happens in prison is part of the overall context of being punished. There is no need to parcel out individual moments and ask "but is this particular action a separate punishment", any more than we need to ask whether swinging bats in the on-deck circle or jogging out into the outfield is part of "playing a baseball game." It's all part of the game, and the hyper-zoomed-in focus on each discrete moment misses the forest for the trees.

In other words, while it may be true that something must be a "punishment" to fall under the auspices of the Eighth Amendment, all prisoners by definition are being punished. They pass that threshold categorically; none of them have been placed in jail by accident. At that point, the relevant question is whether the set of challenged actions or behaviors or what have you suffices to make that punishment into a "cruel and unusual" one. And certainly, being put in an Arkham City terrordome should qualify even (especially!) if the overseers assiduously do not care if you live or die. Perpetual, ongoing, systematic negligence (to say nothing of recklessness) towards persons who are helpless and in your care is one of the cruelest acts imaginable. Where that is part of the punishment, the punishment is cruel and unusual.

Judge Newsom concludes his opinion with the following:

Maybe it makes sense to hold prison officials liable for negligently or recklessly denying inmates appropriate medical care. Maybe not. But any such liability, should we choose to recognize it, must find a home somewhere other than the Eighth Amendment. We—by which I mean the courts generally—have been ignoring that provision’s text long enough. Whether we like it or not, the Cruel and Unusual Punishments Clause applies, as its moniker suggests, only to “punishments.” And whether we like it or not, “punishment[]” occurs only when a government official acts intentionally and with a specific purpose to discipline or deter.

This "whether we like or not" language is reminiscent of my Sadomasochistic Judging article. Judge Newsom seems to recognize the cruelty inherent in his position. But he leverages that cruelty into an argument for textual fidelity; the avoidance of cruelty is the hint that his colleagues have been led astray from the strictures of law. As I've demonstrated above, this isn't true; the text does not demand the cruelty Judge Newsom ascribes to it. But the pleasure of the pain of causing pain is too tempting to pass up. It's not good textualism that's motivating Judge Newsom. It's the ecstasy of bad textualism leading to bad results, whose badness is paradoxically metabolized as the purest and most faithful instantiation of textual loyalty.

Making the Grade Roundup

It's grading season at Lewis & Clark. I have the entire 1L day class this semester across two sections of Con Law I, so it's a bit of a bear. But I'm almost halfway done!

You get a roundup.

* * *

As a professor, I cannot fathom the hubris it takes to see one of your papers rejected from a journal -- the most normal possible experience for an academic -- and decide to parlay it into an entire New York Times column decrying "wokeness".

Florida is set to legalize kidnapping trans children from their families. But don't worry -- they'll only do it if the families love their kids and provide them with healthcare. Family courts in other states better start boning up on asylum law, because the phrase "well-founded fear of persecution" is going to become increasingly germane in cases where there's a possibility of the child being sent to Florida.

Local elections in the UK are seeing the Tories getting absolutely stomped. Over a thousand seats lost by the party, most of which are going to Labour and a healthy chunk of which are going to the LibDems and Greens. It's amazing what Labour can do when it isn't being led by a wildly unpopular antisemitic extremist!

Princeton under fire for hiring prominent BDS activist to a fellowship position. The twist? The activist is a member of the Israeli far-right. But the BDS thing is real -- he supported a divestment campaign against Ben Gurion University in retaliation for its allegedly "anti-Zionist" tilt.

The UAW has new leadership (I had half an eyeball on this, since I technically was a UAW member in my capacity as a UC-Berkeley graduate student instructor), and they're playing hardball against the Biden administration demanding compensation for how new electric vehicles may reduce the number of autoworker jobs.

Bots and Nots in the Sanders Sib Community

Twitter protestations notwithstanding, I find it wholly plausible that Russian bots masquerading as Bernie supporters are the culprits behind some of the toxic online abuse that goes out under the pro-Bernie flag.

And contra some, I don't think that this means that the Russians are "backing Sanders" in any meaningful respect. This is a chaos play -- it's a way of sowing division; there's no implied commitment to any underlying policy preference. When Russian trolls simultaneously promoted both pro- and anti-Muslim rights rallies, it was not because they couldn't decide which side of the issue they fell on. The chaos was, and is, the point (although Sanders' backers could stand to reflect as to why his campaign represents such an alluring vector for sowing mistrust).

However. Being a Democrat who is under the age of 35, I know plenty of Bernie Sanders supporters. The majority of them are normal, pleasant people who are supporting their preferred candidate in normal, pleasant ways.

But I've certainly seen a contingent -- not a majority, but a vocal one -- of the Sanders supporters I know who do endorse or at least excuse the sort of abusive behavior and toxic conspiracy-mongering that Sanders himself has long repudiated. I know this culture is real, and not just a case of bots, because I see people who I know are real partake in it.

The recent story of the Bernie Sanders staffer whose private Twitter account was brimming with vicious, brutal, often misogynistic attacks on rival candidates provides a case in point. This was disgusting behavior, and the Sanders campaign to its credit immediately canned the staffer once it went public.

But many of Bernie's supporters, instead of taking the easy route of "wow, this was terrible stuff -- I'm glad he was fired!", instead elected to pile on the reporter for covering the story at all. The preferred objection -- and I saw this from multiple people who I know are real flesh-and-blood humans -- is that because the account was a private one, the staffer's remarks could not be harassment.

There are, to be sure, indications in the article that the staffer also might have been anonymously responsible for other instances of insults and invective that were made through public channels. But leave that aside. The "it's not harassment if it's a private channel" would be a pedantic objection under the best of circumstances -- yes, it's true that Amy Klobuchar and Elizabeth Warren themselves weren't in a position to see the tweets, but nobody is under any illusions as to how "private" messages of abuse circulated to campaign backers the vast majority of whose accounts are not private contributes to a culture of abuse and maltreatment.

It is normal, and not strange, for internet harassment campaigns to begin with and by nurtured by conversations on sites and fora where the vast majority of posts are not intended to be and likely never will be seen by the putative target. The reason that these conversations on reddit or 4chan or wherever nonetheless matter isn't because the objects of their hatred could theoretically read them. It's because of what they precipitate out -- "private" conversations where edgelording and abuse and brinksmanship are encouraged and cheered on become the fermentation ground from which the "public" harassment springs. Eventually, someone takes it both seriously and literally.

And even if none of that were the case, the apologia still boils down to "he was only privately spreading misogynistic abuse (to 4,000 of his closest friends)." Is that really the hill people want to die on?

It was frankly shocking how many real-life people I know who, when confronted with objectively atrocious, grotesque, hateful behavior by a Sanders staffer, responded by trying to pooh-pooh the importance of the issue because technically it wasn't "harassment". On that note, while the article juxtaposes the staffer's behavior with Sanders' condemnation of online harassment and clearly considers the two to be part of the same family (which they are), it generally describes the posts as "toxic" or "abuse". The second paragraph is indicative:

But the private Twitter account of a newly promoted campaign staffer indicates that despite his condemnation of online harassment, at least some of the Vermont senator’s most toxic support is coming from inside the house.

Perhaps it is fair to say that the article is implying that the staffer's behavior is also harassment. But the nitpicking effort to reframe the issue as about the technical distinction between "harassment" versus purely private abuse -- as if that debate, even if it were resolved against the reporter, would reveal the greater evil here -- was terrible, if illustrating, to witness. It reflects not just the abusive culture itself, but the wider circle wherein the abuse is apologized for, denied, minimized, or viewed as a smear -- a form of toxicity that, if not as visceral as the direct offenders, nonetheless is a necessary auxiliary to it.

Not every Sanders supporter is a "Sanders Sib". The vast majority are normal, reasonable people who support Sanders in normal, reasonable ways. But the fact of the matter is that -- augmented by bots or not -- the cadre that has earned the Sanders Sib label has largely come by its toxic reputation honestly. They're not being framed. They're not being held to unreasonable standards. They have their reputation because of what they -- flesh and blood humans -- do, and tolerate, and excuse. I know it's not bots, because I've seen it from people who I know in real life.

It won't stop me from voting for Sanders if he is the nominee in November (among other reasons, even if I didn't care about substantive policy at all and my criteria for voting was solely "which candidate has the most toxic base of internet support", Sanders still would be orders of magnitude better than Trump). But I'm not going to pretend like reality isn't there.

Honor Beatings in Portugal

A man beat his wife, allegedly after she had an affair. He was not sentenced to any prison time. Now, a Portuguese court has upheld that decision because the woman's affair "dishonored" her husband. The court cited the Bible as justification for its lenient sentence, noting that under biblical law adultery was punishable by death (so what's a little beating?).

"Now, the adultery of the woman is a very serious attack on the honor and dignity of the man," the ruling, signed by Judge Joaquim Neto de Moura, said. "It was the disloyalty and the sexual immorality of the plaintiff that made (the defendant) fall into a profound depression, and it was in this depressive state and clouded by the revolt that carried out the act of aggression, as was well considered in the judgment under appeal."

[...]

"This case is far from having the seriousness that, generally, is presented in cases of mistreatment in the context of domestic violence," the ruling says. "On the other hand, the conduct of the defendant took place in a context of adultery practiced by the plaintiff."

In addition to that, the court also cited a 19th century Portuguese law which recommended only symbolic penalties if a man kills his adulterous wife.

In conclusion, because the nation is European and predominantly Christian and the religious text cited is the Bible, we'll never hear about this case again.

Martinez Takes On Violence Against Women

In the wake of the senseless murder of Jennifer Carolina Viera by her husband, former two-division champion Edwin Valero (who proceeded to commit suicide in prison), newly crowned middleweight champion Sergio Martinez has announced his intention to create a foundation aimed at stamping out violence against women:

"I love and respect women. Violence against women is simply unacceptable," Martinez said. "The great number of cases, too often involving athletes, requires action. I have always confided in my mother and consider myself to be a momma's boy. Women must be respected, not abused."
[...]
"Sergio is going to petition the different sanctioning bodies and the different boxing dignitaries to make them know he is serious in this effort," said Sampson Lewkowicz, Martinez's adviser. "We can create a foundation that makes a world of difference to women everywhere."

Promoter Lou DiBella said he will enlist the Boxing Promoters Association to help in the cause.

"I am proud of Sergio for attempting to use his newfound fame to help address a terrible problem, which must be eradicated," DiBella said.

Martinez, who is from Argentina but living in Oxnard, Calif., said besides creating a foundation and raising money to help the cause, he hopes his newfound status as middleweight world champion will give him a platform to help spread his message.

"My middleweight championship gives me a voice," he said. "I will use this voice in an effort to protect women from senseless violence and abuse."

Good for him. Count me in as a supporter.

The New Animated Special

Some countries hide the fact that the abuse prisoners. Others are ashamed of it. And then there is Hamas, which distributes animated cartoons advertising it.

It's All So Confusing

Oh, if only the feminists never came around. Then kids wouldn't be blaming Rihanna for being abused by her boyfriend.

What has happened — and what Rihanna and Chris have to do with Gloria and us — is that by inventing oppression where there is none and remaking woman in man’s image, as the sexual and feminist revolutions have done, we’ve confused everyone. The reaction those kids had was unnatural. It’s natural for us to expect men to protect women, and for women to expect some level of physical protection. But in post-modern America, those natural gender roles have been beaten by academics and political rhetoric and the occasional modern woman being offended by having a door opened for her. The result is confusion.

I'm not sure what work "natural" is doing here (or "post-modern", for that matter, but that's a common theme in conservative writing), but there doesn't seem to be any warrant for why "women are equal" should correspond to "blame women for being beaten." We "expect" men to protect women? What does that even mean? Historically, it means putting women "not on a pedestal but in a cage", as Justice Brennan put it. Historical masculine "protection" of women meant protecting their own exclusive rights to women, which, quite often, included their exclusive right to act violently against them -- through deprivation, through beatings, and through rape. What history is K-Lo reading where this traditional masculine paradigm didn't manifest itself in horrific violence towards women, particular in the home? And always this violence was justified either as the "natural" right of man to "his" woman's body, or as the proper response to "his" woman's obstinacy. Always.

Via Feministing.

Civil Rights Roundup: 10/06/08

Your daily dose of civil rights and related news

Obviously, this column by the treasurer of the Buchanan County (Va.) GOP (and county representative on McCain's Virginia leadership team) is not racist. After all, the author denied that it was, and we all know that's good enough when it's a White guy!

It's worth noting again -- this election will be a pivotal one in terms of setting the Supreme Court's agenda for the foreseeable future.

It's not a parody -- the poor really are hit hardest by the current economic downturn.

The Pittsburgh diocese of the Episcopalian church has voted to secede in protest of the broader organizations tolerant attitude towards homosexuality.

Activists in Virginia are working to get ex-felons' voting rights restored.

The Washington Post urges a settlement in a long-standing legal fight between D.C. and advocates for the city's mentally and physically disabled population, who are working to overhaul the district's abysmal record of care towards that demographic.

Ten years after the brutal torture and murder of Matthew Shepard, CBS looks back.

Opponents of Nebraska's proposed affirmative action ban are in court trying to keep it off the ballot, alleging that many signatures were obtained fraudulently.

The University of Illinois appears to have gone slightly overboard in trying to curb political expression by its employees.

The Supreme Court refuse to review a Colorado case in which the jury foreman read bible passages to recalcitrant jury members in order to (successfully) convince them to apply the death penalty.

The AFL-CIO is on the case, protecting citizens from illegitimate voter suppression efforts.

A symbolic constitutional amendment in Florida which would strip anti-Asian provisions from the document is likely to fail, primarily because voters are expected to mistake it for increasing rights of contemporary illegal immigrants. Voter ignorance is lamentable, but expected. What is unexpected and unexcusable is that 31 State House Republicans voted against the measure, probably under the same misapprehension.

A White South Carolina state trooper who rammed a Black suspect with his police cruiser, then bragged that he did it deliberately on video, was acquitted by a federal jury of civil rights violations.

A new federal courthouse in Missouri is named after Rush Limbaugh. Thankfully, it's not that Rush Limbaugh (though I had a mild heart attack before deciphering that in the article).

Companies love to sing the praises of arbitration clauses when they're applying them against unwilling consumers, but are far less keen on using them in disputes with their fellow corporations.

The Supreme Court has for the third time rejected a suit by anti-abortion activists protesting a judgment against them due to their "wanted" posters targeting abortion doctors.

Both supporters and opponents of California's Prop. 8 (revoking the right of gay couples to marry) are treading lightly in their efforts to persuade swing voters.

An AP writer says Sarah Palin's charge that Obama "pals around" with terrorists has a racial subtext. John Cole doesn't see it. I'm inclined to agree with Cole, but I think it raises some interesting questions I'll probably raise in a post later today.

A transgender woman won a suit filed against her by former political opponents who said she "misled" voters by running for office as a female.

The New York Times demands the obvious -- having your home foreclosed upon should not deprive you of the right to vote. I wrote about this twisted tactic adopted by some local GOP bodies earlier here.

The Washington Supreme Court holds that employers can't retaliate against employees victimized by domestic abuse who take time off to protect themselves and their children. The Court was bitterly divided; you can access the four opinions handed down here.

Civil Rights Roundup: 08/28/08

Your daily dose of civil rights and related news

A quick note: Now that I'm not doing this for my job, the CRR probably will undergo some changes. First, it'll probably be later. Because if I'm not forced by a paying employer to start working at 9:00 AM, it's highly unlikely I'll do it on my own. Second, it may well be shorter. I don't know. This is a transition. But I do enjoy providing the roundup each morning, so I am going to try to keep the feature going.

So without further delay...

The Boston Globe notes that the changing of the guard in civil rights leadership at the DNC.

In sadder news related to generational shift, Del Martin, one of the earliest leaders in the fight for lesbian and gay equality, died yesterday. She is survived by her wife, Phyllis Lyon, whom she married in California's very first legal gay marriage.

Governor Charlie Crist (R-FL) is responding to complaints that his voter reenfranchisement program isn't reaching the people its designed to help. I want to reiterate how impressed I've been with Gov. Crist on this issue.

A panel hosted by my former colleagues at the LCCR discussed conservative efforts to use controversial civil rights issues as a "wedge" to divide voters.

Hattiesburg American: "Obama speech has special meaning for Southern delegates."

The latest company to face an immigration raid had enrolled in the government's "E-Verify" program. Now companies are complaining that if the system is so flawed that they'll still be subjected to ICE attacks, what's the point of registering in the first place?

The gender equity problem in Japan has reached a crisis point, as Japanese women are refusing to marry until Japanese men start upholding their share of the family life. To the government's credit, it is responding mostly not by lecturing women about their need to be mommies, but by trying to reform the work culture that keeps men away from their families.

A federal appeals court invalidated a Wyoming law that would have made it easier for domestic abusers to acquire guns.

A lawsuit protesting a Arkansas district policy prohibiting boys with long hair from competing in school athletics programs was dismissed after the district agreed to amend the policy.

Nebraska Governor Dave Heineman (R) has announced his neutrality in the upcoming battle to ban affirmative action in the state. David Kramer, former state GOP chairman and leader of one of the groups opposing the ban, is holding out hope he can persuade him to intervene in favor of equal opportunity.

The disabled community is not happy with the level of attention it's getting from Presidential contenders.

The Best and the Worst

The article from Ha'aretz manages to highlight both the best and the worst elements of Israeli society.

Shooting the foot of a bound prisoner at close range with a rubber bullet? Thuggish brutality.

Charging the soldier with the wrist-slap of "conduct unbecoming"? Outrageous.

Human rights groups able to sue in Israeli courts and get an injunction with an order to show cause? Rule of law.

Every country has its brutes. Israel is no different. And every country has people who want to protect those brutes. Israel, again, is no different. But not every country has a truly independent judiciary that can check those abuses. And in this respect, Israel is quite different.

Flight Risk

Feminist Law Profs points out an Arkansas case just handed down by the 8th Circuit: Nelson v. Correctional Medical Services, 2008 WL 2777423 (8th Cir. 2008). Reversing the district court, the court held that shackling a pregnant woman while she's in labor does not constitute an 8th amendment violation. The practice has been criticized by several academic commentators as well as Amnesty International.

The court relied heavily on Haslar v. Megerman, 104 F.3d 178 (8th Cir. 1997), a previous case dealing with shackling an inmate during medical treatment (albeit not with a pregnant woman). In that case, the 8th circuit upheld the shackling of a "virtually comatose" inmate who later suffered permanent leg damage as a result of the shackles being kept too tight as his leg swelled up. The court justified this result by arguing that

[the shackling policy] serves the legitimate penological goal of preventing inmates . . . from escaping [] less secure confines, and is not excessive given that goal. A single armed guard often cannot prevent a determined, unrestrained, and sometimes aggressive inmate from escaping without resort to force. It is eminently reasonable to prevent escape attempts at the outset by restraining hospitalized inmates to their beds . . . .

This case does seem inline with that precedent, but only because both cases use an abstract justification (the flight risk of an inmate -- admittedly reasonable most of the time) in situations where it is woefully inadequate (neither pregnant women in labor nor people in comas represent serious escape risks). Somehow, justifying one bad decision by reference to its similarity to another bad decision is not a major consolation to me.

And, seriously, if there ever was a case that met the nebulous "shock the conscience" standard for a due process violation, this would seem to be it (although I admittedly don't know how the due process clause applies to prison inmates).

Keeping Murder Maximum

My views on the death penalty might be described as the opposite of Feddie's: I don't have an inherent objection to it, but my observation on how it's applied in America makes me skeptical that it can ever be carried in a manner consistent with our standards of justice and due process. Certainly, it isn't being done so now, and so for the time being I don't support the death penalty as a general rule.

Thinking about child rape specifically (since the Supreme Court just outlawed the use of the death penalty in such cases), I think my intuition is the same: troubles with the death penalty as applied notwithstanding, I don't have any intrinsic reason why child rape is not worthy of capital punishment. But on that score, Matt Yglesias makes a good point:

You want to make it the case that no matter what terrible things a criminal has done, he would get an even worse penalty if he killed the victim/witness. Getting bogged down into a debate over the relative heinousness of various crimes is a bit of a red herring -- there's an internal logic to the deterrent system that requires murder to carry a unique and maximally severe penalty.

A good (if not necessarily constitutionally-manifest) point.

The Gitmo Effect

One of Matt Yglesias' cobloggers (Alyssa) wonders if the attention garnered by Gitmo and our other extra-legal detention centers have served to deflect attention from prison abuse at home. I had always assumed, though, that the effect ran the other way: I never really though about prison abuse in any serious fashion until the abuses at Guantanamo and Abu Gharib came to light -- and particularly their lack of significant distance from the stuff we tolerate in domestic prisons.

I suppose I might be biased in that I'm the type of liberal hippie who responds to an assertion that our prisons resemble Abu Gharib with a "oh God" rather than a "hell yeah!", but still -- I'd think the public has been moving towards the position that even really bad people -- including terrorists and criminals -- deserve certain rights, and that's due in no small part to the Bush administration's overreaches.

Faith

I've read quite a few stories revealing the horror of America's prison system (and our detention centers for immigrants). The legal immigrant -- detained on a charge of buying stolen jewelry a decade ago -- who can't get a test to see if her cancer has come back. The nine-year old Canadian child begging the Canadian Prime Minister to intervene and get him and his family out of detention while their asylum claim is being processed. Reports of officially sanctioned rape. Flagrant abuse. Innocent men tortured in extra-legal black sites, then, when we concluded that "oops, he is innocent", dumped blindfolded on a hillside in a random country (it turned out to be Albania). I could go on -- and that doesn't even go into broken process by which we decide who goes to jail in the first place.

These stories, read in themselves, do not distinguish themselves from a typical autocratic thugocracy. Maybe not the worst of these regimes -- there are no reports of mass killing, for example. But certainly well within the bounds of the average brutal dictatorship.

But I read them, and for some reason, I have faith. I have faith that they're aberrations. I have faith that the system as a whole "really isn't like that." That these are exceptions. That we are not what these stories deeply imply that we are.

Why do I believe that? It's a belief that really has no grounding. There are certainly a great many people who are quite outspoken that my faith is wrong -- that the prison-industrial complex really is "that bad", all the way down, and consequently our justice system is essentially a reproduction of cruelty, degradation, and inhumanity that we -- as citizens in a democratic polity (and one that has taken "tough on crime" to be an article of faith) -- are all complicit in. And ultimately, there is very little argument in favor of my faith. The fact that these stories are printed, to (sometimes) public outrage? Please. Scandal is a fickle thing, as Mark Kelman once wrote. Abuse of certain people may be a scandal -- but the abuse of others is routinely ignored, which is not considered to be a scandal, nor is the fact that even the original scandal will quickly be forgotten even as the abuse continues considered to be a scandal. The fact that occasionally prison abuse burbles to the surface is no proof that it is exceptional.

Admittedly, the fact that there are reports of prison abuse does not mean that the problem is epidemic. I'm just in no position to know either way. That I believe that we are not ultimately an abusive state is ultimately an article of faith. But the more I read, the more I'm terrified that my faith might be wrong.

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

"There Must Be Violence Against Women"

Jill of Feministe links to an article of that title in the Yemen Times, with the statement: "Sometimes, words fail."

But, but....I thought feminists don't talk about human rights in the Arab world?

Can't process....must go watch Fox....

UPDATE: One of Amber's commenters raises a good point: if this is just about preserving Islamic mores, why don't women ever get to beat their brothers for their own sexual transgressions, imbibing alcohol, etc.? Or do they and we just don't hear about it?

Not that I want to expand the sphere of domestic violence as religious enforcement, but it does show at least some of the disingenuouness behind the assertion that this has nothing to do with gender hierarchy.

What The Hell is Wrong With My State?

I'm a Marylander. And normally, I'm quite proud of that fact. But recently, my state has been letting me down big time. I'm not even talking about the state Supreme Court's refusal to strike down our anti-gay marriage law (the infamous "we won't be 'beguiled' by plain meaning!" case), which, though disappointing, hardly distinguishes us from the rest of the country. But recently, our courts have ruled that consent cannot be withdrawn by a woman after the initial penetration. And now, via Bean, apparently a Maryland judge just threw out a case where a cop observed a man hitting his girlfriend outside a gas station. The women disappeared, and the judge decided that since "Sadomasochists sometimes like to get beat up," he couldn't assume the punches weren't consensual.

Judge Harris went onto explain that it had to be clear that the defendant's actions were not consented to by the victim, and asked, "How do you determine that without the victim?" (Byron L. Warnken, a professor at the University of Baltimore School of Law, posed this question to a Sun reporter: "What would we do in a murder case?")

My understanding of the law here, incidentally, is that once the elements of a crime have been established "beyond a reasonable doubt" (which they were here), then the burden is on the defendant to show why there was a good "excuse" for the actions (i.e., this was consensual S&M...outside a gas station).

But yeah. As The Nation puts it, apparently "Some Domestic Violence Victims Like Being Hit."

The Strawman that Broke My Back

I try to ignore most right-wing posts that purport to attack "multiculturalism." I know that they have no knowledge of the theoretical or academic underpinnings of multiculturalism, what the movement actual advocates for and represents, or even, beyond a bare-bones caricature, what the term even means. It is a waste of my time, and yours, to highlight every single boneheaded post or article that purports to indict multiculturalism simply by pointing out an instance of somebody doing something stupid or evil, with a racial/cultural component.

But browsing through Powerline, I came across this post by Scott Johnson which just popped my eyes out.

One of the basic tenets of the contemporary liberal faith is the beauty of "diversity." Every day the dogmas of multiculturalism are promulgated relentlessly by our schools, newspapers and media, and public authorities. The transformation of the United States by waves of immigration from non-European countries is always depicted as a phenomenon to be celebrated, as are the immigrants' religions and cultures.

Minneapolis and St. Paul have been deeply affected by the large number of Somali and Hmong immigrants who have made the Twin Cities metropolitan area their home. Their occasionally disturbing cultural practices and the related social costs are rarely discussed.

Despite the liberal dogmas of multiculturalism, for example, one of Minnesota's leading left-wing legislators was responsible for legislation criminalizing the Somali practice of female genital circumcision in Minnesota in 1994. Her feminism trumped her multiculturalism. Female genital mutilation was not much of a problem in Minnesota before Somalis settled here in the 1980's and 1990's.

Normally, I'd skip over some of the minor misrepresentations and just hit my main beefs, but I'm trying to achieve catharsis here so let's go for the whole hog. Briefly:

1) Multiculturalism is mocked by mainstream media sources--it's a running joke of liberalism gone amok. And certainly our schools don't teach it all beyond dull platitudes about how "everybody is special" but really we're all the same (which is kind of the opposite message from multiculturalism, but whatever). Certainly, I became a fan of multiculturalism in spite of my education at the uber-liberal Walt Whitman High School, not because of it. I can scarcely think of anything I learned from my HS curriculum that even remotely pointed towards a multiculturalist point of view.

2) I don't know who is "rarely" discussing problems within immigrant communities. Among conservatives, nothing seems to provide more glee that discussing how backwards and scary brown people are. And among liberals, I've noticed an acute awareness of difficulties in immigrant communities. Attending college in Minnesota for the past three years, I don't think anybody I've seen is not aware of the particular issues and problems faced by Hmong and Somali immigrants. Problems such as female genital mutilation (FGM) are hardly mysteries to American feminist and multicultural groups--I've seen countless discussions about how horrid the practice is, and what are the best strategies for ending it.

3) The idea that, because there are negative elements to a particular group culture, we should decry their presence entirely, is a particularly weird claim to make on a variety of levels. I'd imagine it is true that the twin cities did not have a big FGM problem until Somali immigrants started arriving, but that's about as meaningful as saying America didn't have a slavery problem until White people started arriving. Meanwhile, the absorption of the whole by the part also seems to be a bit of a double standard. Those of us with a bit more intellectual agility than Johnson possesses can believe there are benefits from incorporating a diverse array of cultures, backgrounds, and experiences into our institutions, without approving of each and every cultural practice that comes our way. For example, despite having many cultural practices I find abhorrent, offensive, or just annoying, I am generally pleased when a given institution has at least some American presence, and think the world is a better place when there is at least some American influence. I know that, while the "manifest destiny" mentality, or the long history of racism, or (ironically enough, given the topic of Johnson's post) our relative apathy towards spousal violence (demonstrated by a culture of silence, strong pressures not to go the police, misogynistic views that give men considerable latitude to deal with "their" women, and a general belief that such issues are "private" matters best kept out of the public eye--reasons that will sound familiar if you keep reading....) are all things about American culture that need to be critiqued and reformed, there are also plenty of good things about American culture that deserve to be promulgated throughout the world. Nimbleness is a useful trait to have.

4) This is perhaps the thing that most ticked me off: What evidence does Scott provide that multiculturalists sanction, ignore, or otherwise condone this behavior? Normally, here is where we get some fringe academic taken out of context to do the work, but Scott doesn't even provide that. Instead, he points out a "left-wing" legislator who worked to toughen penalties for FGM. Well gosh, wouldn't that seem to indicate that the defenders of multiculturalism are equally appalled by FGM and wish to put a stop to it? No, apparently it just means that the legislator let her "feminism trump[] her multiculturalism." Aside from the fact that this is the only time you will ever here Scott Johnson use "left-wing feminism" as anything but a swear word, the entire argument is just breath-taking in how far it has to stretch out to make sure it condemns the right people. As we will see below, even the barest familiarity with the multicultural position would show that it takes precisely the culture-conscious position Scott wants it to take, rendering his whole argument a bizarre "12 wrongs make a right" tenor.

Okay, back to the main. Johnson links to this story about an attempted murder of a wife by her husband in a Somali immigrant family. The story delves into how the particulars of Somali cultural practice often make these crimes hard to prosecute. There is a culture of silence surrounding domestic abuse, which prevents reform from penetrating. There are strong community norms that seek to "deal" with such abuses in-house, without informing relevant authorities. Victims are pressured into keeping silent and not going to the police. All of this "suggest[s] a specific cultural component that is uncomfortably subsumed within the category of 'domestic abuse.'" This obfuscation, we are led to believe, is a product of adherence to the multiculturalist dogma.

This, to be blunt, is a spectacularly ignorant claim. Why? Because the multiculturalist movement has been saying precisely what Scott is arguing for decades. Multiculturalists have specifically critiqued how maintaining a universal narrative of such concepts like "domestic abuse" tends to inadequately account for the way abuse plays out in minority communities, thus rendering them particularly under-protected and enhancing their subordinated status. I am baffled as to how anyone with even a remote awareness of the tenets of multiculturalism (and here we may have our problem) could miss this, as the need for particularized analysis of minority-group practices as part of reformist agendas is probably the single most central insight to the entire multiculturalist agenda. For example, here's Kimberle Williams Crenshaw, known as the founder of the Critical Race Feminism movement and certainly someone who would fit into the "multiculturalist" label, on some of the specific cultural barriers that make it more difficult for immigrant women to escape domestic abuse via "conventional" (mainstream, White) means:

[C]ultural barriers often further discourage immigrant women from reporting or escaping battering situations. Tina Shrum, a family counselor at a social service agency , points out that " .... Just to find the opportunity and courage to call us is an accomplishment for many [in the Asian community]." The typical immigrant spouse, she suggests, may live "[i]n an extended family where several generations live together, there may be no privacy on the telephone, no opportunity to leave the house and no understanding of public phones." As a consequence, many immigrant women are wholly dependent on their husbands as their link to the world outside their homes.

Language barriers present another structural problem that often limits opportunities of non-English-speaking women to take advantage of existing social support services. Such barriers not only limit access to information about shelters, but also limit access to the security shelters provide. Some shelters turn non-English-speaking women away for lack of bilingual personnel and resources. These examples illustrate how patterns of subordination intersect in women's experience of domestic violence." [Kimberle Williams Crenshaw, "Intersectionality and Identity Politics: Learning from VIolence against Women of Color," reprinted in Feminist Theory: A Reader 2nd Ed., Wendy K. Kolmar & Frances Bartkowski, eds. (Boston: McGraw Hill, 2005), pp. 533-542, 535]

Far from ignoring the cultural component to such violence, Crenshaw stresses it as an integral part of determining how to redress it. If our normal anti-abuse measures involve women calling a hotline, for example, Shrum's experience would let us know this will be inadequate for many Asian immigrant women. I, too, have written posts on how knowledge of specific cultural practices is essential if we are to truly to enact a progressive agenda respecting the rights of women in a pluralist, multi-cultural society. Amazingly, this leads to yet another irony--dealing with the "cultural component" to abuse cases (among others) requires a viewpoint that is conscious of these differences and may require different resources and responses for different communities. In other words, it will be (shudder) color-conscious. So it is that, while Johnson is quite willing to pontificate on the problem, he probably will stand in opposition to the solutions that would be indicated by the issues he is bringing up because they won't be "color-blind" (who wants to do an over/under on how often "the soft bigotry of low expectations" will be deployed in that future post?).

I could elaborate on the multicultural prescription for dealing with domestic violence at greater length, but that would digress from the point of this post, which is that multicultural feminists have been doing exactly the work Johnson says we should be doing, for far longer than he's cared about the issue, and will continue to do so long after he loses interest in the plight of Somali immigrant women. Any good multiculturalist will tell you that spousal abuse is a problem in the Somali community, and a problem in the White American community, and that both problems will require different approaches to solve because both problems are tied up in particular cultural practices that change the structural terrain. Know thy enemy, and don't be ignorant. Sheesh.