Hostage Situation

While it wasn't on my formal list, I propose that one of our collective new year's resolutions be to remember that one does not, under any circumstances, have to hand it to Elise Stefanik:

Rep. Jamie Raskin (D-Md.) went after Rep. Elise Stefanik (R-N.Y.) on Sunday after Stefanik called those found guilty of crimes related to the Jan. 6 Capitol riots “hostages,” claiming that her divisive remarks are part of her efforts to join former President Trump’s 2024 ticket.

[....] 

“I have concerns about the treatment of Jan. 6 hostages,” [Stefanik] said. “We have a rule in Congress of oversight over our treatment of prisoners. And I believe that we’re seeing the weaponization of the federal government against not just President Trump, but we’re seeing it against conservatives.”

In the immediate aftermath of January 6, Stefanik was vocal in demanding the Justice Department prosecute those responsible “to the fullest extent of the law.” But that was then, and this is now, and now Stefanik sees an opportunity to pander.

That Stefanik is a craven opportunistic weasel is too clear to need remarking on at this point. Kudos also to Raskin for taking the obvious but nonetheless necessary shot:

Raskin also demanded that Stefanik apologize for her comments, pointing to approximately 130 hostages held by Hamas in Gaza amid the brutal war with Israel.

“People convicted of violently assaulting police officers and conspiring to overthrow the government are not ‘hostages,’” he said on X. “Stefanik must apologize to the families of 130 people being held hostage by Hamas right now. Her pandering to Trump is dangerous.”

Israelis being raped and brutalized in Hamas captivity are "hostages". Insurrectionists imprisoned after being duly convicted for crimes following due process of law are not. Simple. And while Stefanik's casual insult towards actual hostages is hardly the primary story, anything that dims the ill-gotten luster Stefanik "earned" via her bad faith grandstanding about campus antisemitism is worth applauding.

(Actually, I'll make one more observation here, which is that somehow prison abolitionists -- who might agree in concept with characterizing workaday criminal convicts as "hostages" and certainly would support greater scrutiny of how we treat prisoners -- have somehow managed to resist any "well, I may not like her, but you've got to hand it to Stefanik ..." temptations. Fancy that.).

Who Loves Prison Stabbings?

One of the sobering experiences of being a judicial clerk is the mountain of cases you see from prisoners alleging prison violence, abuse, and mistreatment. Even worse is the fate of most of these lawsuits, which is typically a swift and decisive dismissal. Earlier this year I alluded to one case that stood out to me out of the Eighth Circuit, Leonard v. St. Charles County Police Department, where a jailhouse nurse simply refused to give a mentally ill inmate his prescribed medication (despite the insistent efforts of the inmate's mother to ensure the medication was delivered). Instead of giving the man his medication, the nurse placed him under suicide observation -- the end result being jail staff "observing" the man claw out his own eyeball. This behavior, the Eighth Circuit held, carried no liability for the prison staff.

The Leonard case isn't an anomaly. If one is a clerk (or a judge, or an attorney who works on such matters), one sees allegations like this as a matter of course -- a terrible, unending drumbeat of abuse and neglect. Admittedly, these allegations are at the stage where we're talking about just allegations -- they aren't proven. But that it some ways makes it worse, because the procedural posture of the cases requires that judges assume the facts are true as the prisoner alleges them, and so it is those sets of facts which judges repeatedly conclude present no constitutional violation. There is no gainsaying that, as far as the dominant doctrine of constitutional law is concerned, the state is allowed to brutalize its prisoners in an unfathomable variety of sickening ways without any legal recourse whatsoever. 

Each time I read one of these cases, I'm horrified anew. They all have their horrible points that stick in your mind for different reasons. The sticker of the Leonard case was the role the plaintiff's mother played in the narrative. I don't know what Leonard did to be in jail; he may be a very bad man. But even if you feel no sympathy for him, the torment his mother must have been put through -- her desperate, impotent, and ultimately futile attempts to ensure her son would not be neglected in his moment of vulnerability -- is nothing short of horrifying. Him being incarcerated meant she was in a position of being completely at the mercy of the state as to whether her child would live or die, would be taken care of or would be cruelly and cavalierly abandoned. The state made the latter choice. There's nothing she could do about it, she ultimately could not protect him. And the law's reply to that choice and that impotence is to shrug its shoulders and say "fine by us".

The thing that gets me isn't (just) the cruelty itself. It's the option of it; the legalized indifference as to whether it happens or not. Another inmate is in an similar position perhaps, but the jailhouse nurse makes the humane choice -- she gives him his medication. Great, but as far as the law is concerned, that was nothing but a choice -- it's basically a matter of fortune she chose as she did. Being perpetually at the mercy of the arbitrary negligence of the state is a punishment, and is a cruel and unusual one at that. I don't make any claims as to whether a program of incarceration demands that sort of systematic indifference to human dignity. I will say that if this is what is necessary to make that program run, then the cost is too high. And that assessment in no way depends on any denial that the prisoners subjected to this system may in many cases legitimately be called bad people.

All of this is warmup to story you might have heard that Derek Chauvin, George Floyd's murderer, was stabbed in prison. This story has led to a lot of replies taking the form of "hope the knife is okay" and other witty posts of endorsement and cheer. Much of this, to be sure, stems from people who are not in any meaningful sense politically aware and active -- they view (correctly) Chauvin as a bad man, and so they cheer a bad thing happening to him. But I've seen plenty of people with more sophisticated political palates who've basically been taking the same line -- they're absolutely fine with Chauvin being subjected to violence and abuse in prison because he's a bad man who has it coming. Indeed, some of them are angry that some "liberals" have the temerity to say it's a bad thing that Chauvin was stabbed in prison. How dare the liberals not permit us to rejoice in Chauvin being subjected to a dose of state-supervised arbitrary violence?

There is, I'll agree, something to be said regarding a "Himpathy"-style critique here -- why, when this sort of violence is pervasive in the prison system, does it seem as if we suddenly find extra stocks of empathy when it's the Derek Chauvins of the world exposed to it? On the other hand, we might suspect that the persons appalled by Chauvin being stabbed are also appalled by other prisoners being stabbed, and the reason we haven't noticed it is because the world doesn't bother paying attention to their identical empathic responses except when it's the likes of Chauvin at issue. 

Leave that aside. I don't think resolving that debate changes the fact that it matters that a non-trivial chunk of the voices who present themselves as "abolitionists" are finding themselves unable to contain their joy at seeing Derek Chauvin stabbed in prison. Why? Because it reveals one of their core political promises to be a lie. A core differentiation between reformists and revolutionaries in this domain is that the latter purport to reject outright the leveraging of systemic, organized collective violence as a tool of social discipline and punishment. The former, by contrast, accept that organized, collective violence (which is what prison ultimately is) is sometimes justified as a tool of social regulation and are trying to constrain, ameliorate, or otherwise redirect it. The revolutionary appeal here is that supposedly it isn't just about reshuffling the deck of organized violence. It's a more fundamental alteration; which is why saying "but what about all the bad people who do bad things" isn't taken to be a knockout response. For the bad people too, we need to find an alternative to the leveraging of systematic, organized collective violence as a tool of social discipline and punishment.

But when the "revolutionaries" are seen cheering Chauvin being subjected to prison violence, it suggests that they, too, ultimately are just pursuing an agenda of redirecting these projects of collective violence towards more suitable targets. At that point, their only basis of appeal boils down to "we are better at identifying the true 'bad people' who are deserving of being subjected to collective violence as a means of social discipline, and better at channeling that violence to those people in appropriate dosages, than are the current powers-that-be." For my part, I don't see much basis for why they've earned that degree of trust (note, for what it's worth, that they're aligned with the current powers-that-be with respect to Chauvin -- both have demarcated him as among the "bads", and both are performatively fine with a system where he is at the arbitrary mercy of being stabbed), and it's certainly a far less ambitious proposition than how it's commonly framed. Ultimately, the most honest players of the game might be the relatively apolitical centrists: they never pretended to have a serious problem with "bad people" being subjected to unconstrained violence in prison, they view Chauvin as falling into the category of "bad people", and so they're perfectly happy to see him subjected to unconstrained violence in prison. Say what you will about it, but there's nothing inconsistent there.

One sees, I think, a similar dynamic manifest frequently in the discourse around a "one-state" solution to the Israel/Palestine conflict. In one moment, proponents declare their agenda to be a neutral, secular, "state-for-all-citizens" that is studiously equal in its orientation to Jews and Arabs alike and most certainly is not about institutionalizing a hierarchy of political dominance for their preferred faction. And who could oppose that? (Answer, we're told, is "only people who support hierarchies of ethnonationalist political domination"). But in the next moment, some of these same people can barely contain their ecstasy at witnessing "settlers fleeing the land", land that they are naught but foreign interlopers on to begin with, and also when they are fleeing to distant shores could anybody really blame the locals for organizing a light lynch mob to greet them, genocidal colonizing settlers that they are? The latter expression falsifies the sincerity of the former; the sort of person who believes that "Israelis are, to the man, thieving genocidal settler war criminals" obviously cannot be taken seriously when they portentously aver "and the political arrangement I hope to set up should welcome them as equals." It is beyond obvious that the people who oscillate between these two instincts are simply weaving a narrative that will support a reshuffling of political domination; that their ultimate pitch for why they should be backed is because they'll do a better job than the current powers-that-be at identifying who actually deserves to be on the top and who deserves to be on the bottom of the new state of affairs. And it's equally obvious that many of their backers lend their support to this political program for that exact reason -- they understand full well that this politics is a means to an end, not an end of harmonious equality, but an end of the bad people being thrown down, punished, made to be lessers, and getting the comeuppance they so richly deserve. Maybe they're right in their assessments -- but if they are, it isn't because they're representing some categorical break from what's come before or the politics they purport to reject. It really is a matter of whose ox gets gored.

To be honest, it really doesn't surprise me that, even in political movements that purport to represent rejection of arbitrary infliction of collective violence as a tool of social reform, or rejection of programs of ethnonationalist political domination, much of the practical "foot soldier" energy behind the causes really boils down to a desire to redirect the complained-of atrocities to new and better enemies. There's nothing especially new here (Angela Davis was infamously impassive regarding the mass imprisonment of political dissidents in Soviet bloc nations, for example). And the most cynical but not wholly-incorrect way of describing politics in general is that it is a series of debates regarding when, where, why, how, and to whom we should direct collective projects of violence as means of social regulation and punishment. In that sense, nobody is doing anything out of the ordinary. But that very ordinariness is what reveals the lie; the lie that there is something revolutionary at work here, and that those who don't trust this revolutionary impulse are suspicious only because they're addicted to the violence that their betters are trying to abjure. No -- it turns out, they're absolutely right to be suspicious and their suspicions are absolutely right. 

I'm not saying that nobody is principled here; in fact, I suspect there are plenty of people who are absolutely genuine in their commitments. But the number of persons for whom the high-minded rhetoric of abolition or secular equality or what have you is really just a thin veil for crafting a new narrative that can justify redirecting violence towards the "right" targets is, I think, far larger than anyone would care to admit. Cheer Chauvin's stabbing if you want. But don't expect anyone to then believe that the politics you propose is even in utopian concept about rejecting in principle the deployment of collective violence as a tool of social control.

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.

How Do Conservatives Explain Negative American Exceptionalism?

Over at the Washington Monthly, Keith Humphreys put up a chart comparing various countries along the axes of homicide rates and incarcerations rates.

Ideally, you'd want to be a country that has low homicide rates and low incarceration rates (Norway, Germany). Countries that have low murder rates, but get there by locking everyone up, are despotic (Iran). Countries that have low incarceration rates but high homicide rates are lawless (Mexico). And the finally, countries which throw everyone into prison but still have high crime rates are "disastrous", and of course, the U.S. of A. falls decisively into this category.

(Kevin Drum thinks violent crime rates are more useful than homicide rates for this sort of illustrations, which reshuffles some of the countries, but not in a way relevant to our purposes since the United States remains a clear disaster.)

I've long been curious how conservatives explain this sort of American exceptionalism -- metrics where America just clearly and unambiguously is far worse than nearly any other peer nation. Why, under the conservative telling, are we so bad at this compared to other countries?

Liberals don't have too much trouble with this problem -- partially because we're less wedded to chest-thumping about "greatest nation on Earth", more saliently because we have an easy explanation (guns + racism) ready to roll. But of course conservatives aren't going to be fans of that explanation. So what do they go with? It can't be "soft on crime" -- again, we're clearly "tougher on crime" than most peer nations (perhaps some "reforms" in that direction could push us into the "despotic" quadrant alongside Iran -- what a cheery thought -- but it doesn't seem to work as an argument). And I can't say I'm drawing much when I try to think about how they purport to explain this phenomenon. Do they just sit in denial of it?

It Is Not "Shocking" To Ask Judges to Obey Governing Precedent: On Jones v. Mississippi (and Miller and Montgomery)

Earlier this week, the Supreme Court in Jones v. Mississippi ruled 6-3 that states can sentence juveniles to life without parole so long as the underlying state statute does not mandate such a sentence. While prior decisions (Miller v. Alabama and Montgomery v. Louisiana) suggested that juvenile offenders could only be sentenced to life without parole if they are "incorrigible", the Jones Court held that these precedents do not require the sentencing court to actually make any findings on that point. So long as the court had the discretion to consider the mitigating factors associated with youth, the constitutional mandates set out in Miller and Montgomery are satisfied. In Jones, the result of this holding is that an inmate who committed his crime at the age of 15 and whose conduct since incarceration has seemingly decisively proven that he is not incorrigible but in fact can and has reformed, will -- absent executive clemency -- spend the rest of his life in prison.

Justice Kavanaugh wrote the majority opinion -- the irony of him declaring it permissible to permanently expel a man from society for youthful wrongdoings was not lost -- and at the conclusion seemed to acknowledge that the rule he declared was harsh and perhaps even unjust to Jones. This made me think of my recent article "Sadomasochistic Judging", where I explored how judges acknowledge and lament the pain their rulings cause as a means of securing legitimacy for those rulings. Josh Blackman, though, was very unhappy to see Justice Kavanaugh make these allusions at all. "The Supreme Court should focus on its own business, and let the other branches of state government do their jobs. Stay in your lane."

I am on the record as being strongly in favor of judges making statements of this form, and I won't rehash all my arguments on the subject here. But I will make one point that might be an important clarification regarding my thesis in "Sadomasochistic Judging". One could mistakenly read my article and think I am criticizing judges for a form of hypocrisy or bad faith when they wring their hands about the seeming cruelties they impose. I'm not. The problem I articulate is that judges confuse the pain they wrought for proof of legitimacy, and so come to seek out painful rulings even when they're not legally compelled. Given how badly the Court butchers its legal reasoning in Jones (see below), I don't think its unfair to hypothesize that's part of what's happening here.

That said, assuming that we don't think judges will never have to mete out injustices in order to stay within the law -- and I don't think that -- then judges have to either acknowledge the injustices they enforce or ignore them. Choosing the latter may well replace "sadomasochistic judging" for plain old sadistic judging: judging where it is believed that the judges actively desire the pain they cause for its own sake, or are at least indifferent to it. That, I think, would be disastrous for the legitimacy of the courts. If Justice Kavanaugh (or any other justice) believes that his servitude to the law requires him in a given case to be a dealer of cruelty, the absolute least we can ask out of him is that he acknowledge what he's doing. This is not "virtue signaling" nor "checking one's privilege" nor any of the other tired buzzwords Blackman attributes to Justice Kavanaugh. It is having his eyes open to reality.

But Justice Kavanaugh's nod to the human costs of his decision is not Blackman's only bone to pick. In a separate post he also takes aim at a particular line in Justice Sotomayor's dissent, one that he claims to have "shock[ed]" him when he read it. Here's the offending passage:

For present purposes, sentencers should hold this Court to its word: Miller and Montgomery are still good law. See ante, at 19 ("Today's decision does not overrule Miller or Montgomery"). Sentencers are thus bound to continue applying those decisions faithfully. Thankfully, many States have already implemented robust procedures to give effect to Miller and Montgomery. In other States, the responsibility falls squarely on individual sentencers to use their discretion to "separate those juveniles who may be sentenced to life without parole from those who may not." Montgomery, 577 U. S., at 210. Failing to do so violates the Eighth Amendment. 

Huh? What is shocking about this? As Sotomayor observes, the Court explicitly upheld Miller and Montgomery. These cases are still good law. So yes, obviously lower courts are "bound to continue applying these decisions faithfully." That's vertical stare decisis 101.

Blackman explains his shock as follows:

Justice Sotomayor has opened an entirely new front in the battle over stare decisis: if the Roberts Court is unwilling to formally overrule a precedent, then lower courts should still follow those decisions "faithfully." Truly, this proposition is remarkable. Justice Sotomayor is inviting trial courts to engage in a judicial resistance of Jones. Yes, I used the phrase judicial resistance. Unless the Court is willing to bite the bullet and formally overrule the precedent, judges should still follow a rejected-reading of Montgomery and Miller. The antidote to stealth overruling is stealth underruling: lower courts should quietly fail to give a new Supreme Court precedent its fairest reading, in order to preserve a now-rejected reading of an older precedent.

Respectfully, I think this is the sort of passage a faithful exponent of constitutional interpretation can be legitimately shocked by. If the Supreme Court says flatly "we are not overruling, but rather applying, a precedent", lower courts absolutely should still follow those precedents "faithfully". It would be remarkable to suggest anything otherwise. To be clear, I don't deny that sometimes courts overrule cases sub silentio, or that long evolutions in law can make a prior precedent so anomalous that it seems to drop out of the doctrine and eventually ceases to be followed. But that's not what happened here. Jones did not ignore Montgomery and Miller, it did not even criticize them. It claimed to be faithfully applying them. The fairest reading of Jones is that it means what it says: Montgomery and Miller remain fully binding on lower courts.

In Blackman's defense, part of the problem here is that while Jones claims to be following Montgomery and Miller, it really makes hash out of both. In this, Justice Sotomayor (and Justice Thomas, I suppose), are correct -- the rule in Jones is ludicrous as a purportedly faithful application of these prior precedents. But nonetheless, the case says what it says, and lower courts are bound to take it at its word, which means they have to figure out how to harmonize Montgomery and Miller with Jones -- applying them all faithfully.

What does that mean? Montgomery told us that while "Miller did not impose a formal factfinding requirement", this "does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment." Justice Kavanaugh, in a show of tremendous bad faith, quotes the former part of the passage ad nauseum while ignoring the latter entirely save for a buried footnote. But again, lower courts have the holdings they have. There still is a distinction between "those juveniles who may be sentenced to life without parole [and] those who may not" -- language from Montgomery that Justice Kavanaugh says he is applying and enforcing in Jones.

The best -- possibly only -- way to harmonize Jones, Miller, and Montgomery is that sentencing courts are not permitted to "sentence a child whose crime reflects transient immaturity to life without parole" (Miller and Montgomery -- these are the juveniles in the "who may not" category), but that so long as the sentencing court is given discretionary authority to consider the constitutionally-mandatory mitigating factors (such as incorrigibility), it will be (irrebuttably?) presumed that they did consider such factors and determined they do not apply to the child if they decide to impose such a life-without-parole sentence -- even if the sentencing court makes no explicit or implicit findings on the question (Jones). This is no doubt why Justice Kavanaugh keeps stressing that what he's rejecting is a demand that sentencing courts make a "separate" factual finding of incorrigibility (in his opinion "separate", in relation to "factual finding", appears close to twenty times). The relevant "finding" is permitted to be and assumed to have been merged entirely into the court's declaration of the sentence -- no "separate" analysis, whether implicit or explicit, is required.

To be sure, the effect of Jones even read this way is to make Miller and Montgomery effectively unenforceable. But an unenforceable rule is still a rule, it just relies on the relevant actors to police themselves in adherence of it -- or put differently, it requires that such actors behave "faithfully". 

Again, as a claim of being a mere application of Miller and Montgomery, Jones makes a mockery of legal reasoning. It does not apply the prior precedents, it hollows them out. So any attempt to harmonize these precedents is going to generate tension, because in terms of its legal reasoning Jones is barely better than gibberish. If there are portions of Jones which seem to suggest that lower courts are permitted to simply ignore the mandates in Miller and Montgomery, all that demonstrates is that Jones is at war with itself, and in particular the parts that swear up and down that Miller and Montgomery remain perfectly intact. Shoddy reasoning by SCOTUS leads to unclear guidance for lower courts.

Still, the Supreme Court in Jones could have overturned Miller and Montgomery. It didn't -- not just "formally", but explicitly. It was very emphatic that it didn't. Blackman's opening statement -- that "Going forward, Justice Kennedy's 5-4 progressive decisions should no longer be treated as precedential," even where they are not overturned, is not an option lower courts are permitted to indulge themselves in. Justice Kennedy's decisions, progressive or otherwise, 5-4 or otherwise, are precedential up to and until the Supreme Court says otherwise. 

Lower courts are not empowered to do the Supreme Court's wetwork for it. The lower courts' obligation is to follow all the active, binding precedents faithfully. What that means in this context, in practice, is that lower courts, when given the discretion to decide whether to sentence a juvenile to life without parole, are obligated to mete out such a decision only when it is compatible with the holdings set out in Miller and Montgomery, even if they know that thanks to Jones nobody will be looking over their shoulder to check on their work.

One final note. Blackman raises the following hypothetical, which he says is "invit[ed]" by Sotomayor's dissent:

Let's say a sentencer declines to sentence a juvenile defendant to LWOP because the defendant is not incorrigible. That decision can be baked into the broader element of "discretion." Could an appeals court reverse a sentence, because the Supreme Court held that incorrigibility was not required? Of course not. A factor may not be required, but a judge, in his discretion, can still consider that factor. In other words, sentencers can get away with ignoring Jones, and probably will.

This I think gets Jones entirely backwards. Miller and Montgomery set out some constitutionally-mandatory limits on when LWOP can be imposed on a juvenile offender. Jones says that the only constitutional enforcement-mechanism for these rules that the sentencing judge must be given discretion to consider the issue. If a sentencing judge, in using that discretion, determines that a juvenile defendant is not incorrigible and so declines to impose the LWOP sentence, that's doing exactly what Jones (and Miller and Montgomery) say she should be doing. If the judge believes the defendant is not incorrigible but acted with "transient immaturity" yet sentences him to life without parole anyway, defying Miller and Montgomery secure in the knowledge that Jones will insulate her decision from review, that's thwarting the logic of Jones (not to mention Miller and Montgomery). Ironically, such a judge would not even be reading Jones faithfully, to say nothing of Miller or Montgomery. 

Jones is predicated on the belief that, so long as the sentencing judge is given discretion to consider the constitutionally-mandatory factors "necessary to separate those juveniles who may be sentenced to life without parole from those who may not," the judge will consider these factors -- whether they make any "separate" findings or not. A judge who simply refuses to engage in that consideration, knowing that there's no possibility their exercise of "discretion" can be reviewed, is behaving in bad faith. And Justice Kavanaugh alludes to that very point in footnote seven, where he raises the possibility that "if a sentencer considering life without parole for a murderer who was under 18 expressly refuses as a matter of law to consider the defendant’s youth ... then the defendant might be able to raise an Eighth Amendment claim under the Court’s precedents." Of course, any judge who is not an idiot will quickly learn that if he wants to completely ignore the nominally mandatory requirement that they consider the factors related to the offender's youth before imposing LWOP, all he needs to do is say nothing -- an option the Court expressly endorses in Jones. This is why Jones renders Miller and Montgomery a practical nullity. But we could and should still say that a judge who did that -- who exploits the option the Supreme Court gives him to defy without consequence the rules set out in the Supreme Court's binding precedent -- is not acting "faithfully."

It is doubtful that such a faithless judge will be paused by Justice Sotomayor's dissent either, of course. And I can't even claim to be "shocked" that they won't be. But I perhaps still can be shocked to see a legal professional openly object to a judge's straightforward admonition that lower courts should apply precedents faithfully. Miller and Montgomery and now Jones are all binding law, and lower courts now are tasked to make something edible out of the hash that is Kavanaugh's majority opinion.

Reluctantly Not Being Evil

In Texas, a federal judge has thrown out an effort by Texas Republicans to invalidate over 100,000 legally cast ballots down via "drive-up" voting procedures in Harris County, ruling that the plaintiffs lacked standing. That's rightfully the headline, and it certainly puts this judge ahead of his colleagues on the 8th Circuit, but buried in the middle of the story we read that -- had he found the plaintiffs had standing -- he would have enjoined any further (i.e., today's) drive-up votes from counting. In other words, he thinks the plaintiff's crackpot theory is correct on the merits, he's just bound by technicalities not to give them what they want.

Meanwhile, the Supreme Court today reversed the 5th Circuit's decision that prison guards leaving an inmate in a cell overflowing with his own bodily waste and sewage deserve qualified immunity, concluding this was one of the rare instances where even general statements of law could provide fair notice that the relevant governmental conduct was unconstitutional. This is noteworthy on its own, as the Supreme Court virtually never intercedes to chide lower courts for being too willing to grant qualified immunity, but apparently this case was a bridge too far. Justice Alito concurred in the case -- which, again, puts him ahead of Justice Thomas, who dissented without opinion -- but wrote separately to chastise the Court for even taking the case, deeming it a matter of mere error-correction that was not worthy of the Court's time. Again, Justice Alito seems flatly annoyed that he was placed in a position where he felt compelled to be less of a schmuck than he'd like -- and anyone who voted for to intercede in Dunn v. Ray has permanently lost the ability to complain about the Court being too loose in hearing cases.

Not My President's Day Roundup

Our apartment's water heater is being replaced tomorrow. That means my one true joy in life -- long, languid, hot showers -- will also have to go for the day. It will be terrible.

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China's crackdown on religious liberty threatens the tiny but ancient Kaifeng Jewish community.

One of the few Black mathematicians in American academia recounts the microaggressions and subtle racism which alienated him from his own discipline.

I think the tone of this column is a little off, but the broad point -- that leftist anti-Zionists have no friend more highly placed in Israel than Netanyahu himself -- is on the mark, and it's important that someone like Eric Yoffie is saying it.

Alabama newspaper editor urges the return of the KKK in order lynch Democrats (and insufficiently conservative Republicans). Yes, really.

Apparently, Louisiana has a bad habit of not releasing prisoners after they've finished serving their sentences.

"As a Jew, I’m either furious or eating. Sometimes both."

For all the talk of "creeping Sharia", the fact is that the American Muslim community is actually experiencing something very different: creeping liberalism. For a community that, for much of recent electoral history, at least leaned Republican (especially on social issues), the rapid embrace of feminism, gay equality, and sexual liberation among the younger generation is coming as a bit of a shock to the more conservative old-guard.

The Cruelty is the Point: SCOTUS Edition

In my roundup the other day, I included the case of an Muslim death row inmate in Alabama who had received a stay of execution by the 11th Circuit because the state was refusing to let his Imam be with him during his execution (the state would have allowed a Christian chaplain, who was a prison employee, in the room). I noted that Alabama appealing the stay -- but I almost didn't bother, since in my head I figured there was no chance the Supreme Court would get involved. Why would they? The stay was at most a minor inconvenience, the Establishment Clause problem seemed obvious and extreme, and there was no pressing issue here that demanded high court intervention to stop the case from proceeding at its own pace.

Shows what I know. In a 5-4 decision (over a brutal Kagan dissent), the Supreme Court vacated the stay and allowed the execution to proceed. The inmate had filed his challenge too late -- not that it was actually barred, mind you, the Court just decided of its own discretion that the inmate was dilatory and that therefore it wouldn't allow the 11th Circuit to hear the case (never mind that, based on the record available, it seems that the inmate filed his case in a perfectly timely fashion).

I have to confess, this rattled me -- more than I would have anticipated -- and I'm clearly not the only one. There are times when courts issue rulings I disagree with, and there are times that courts -- even the Supreme Court, with near-infinite discretion over its own docket -- are effectively compelled to step in and issue a decision in fraught circumstances where some people are going to be displeased with the outcome.

But this wasn't one of those cases. There was no need for the Court to step in here; indeed, it was a shockingly aggressive intervention in a case where the balance of equities seemed to run decisively in favor of the inmate. In this context, the Court's decision -- and the meager faux-technical rationale behind (that doesn't even seem to stand on its own weight) -- feels worse than wrong. It feels petty. It feels mean-spirited, and it feels cruel. And while there are many times where I disagree with this Court on important issues, it is rare that I've felt that they were cruel.

But that's what this decision was. I don't have a philosophical objection to the death penalty (though I have a welter of objections to how it is administered in practice). But I've always felt very strongly that it is important to treat even condemned inmates with respect and dignity -- that capital punishment does not license dehumanization. We're already locking them in a cage and then killing them, visiting further indignities upon them seems gratuitous. So whenever I see rabble-rousers start targeting "last meals", or a prisoner's few hours of "recreation time" because they're prisoners, they're the worst of the worst, I blanch. Such minor nods towards the continued humanity of the condemned are deeply rooted in our nation's history and tradition; they are part of what separates a justice system from unchannelled and unconstrained vengeance.

It should be needless to say that allowing a man facing execution whatever comfort and support he might get from a pastor of his faith is also part of that tradition: it is cruel -- obviously and needlessly -- to deny him even that much. Indeed, the obviousness of this point is why Alabama has a (Christian)  chaplain on staff and available to begin with. So to deny that small comfort to an inmate because of his Muslim faith represents such a striking departure from tradition and practice that it is hard not to see it as motivated by religious animus -- that Muslims don't deserve whatever comfort and pastoral care they might receive from their false clerics. Particularly in the wake of the Muslim ban decision, one could forgive those who now seriously wonder if the basic human equality of the Muslim community is acknowledged at the highest court in our land.

This decision is not a "great" decision. It sets no sweeping precedent, it's (nominal) basis on the alleged "delay" in filing means it doesn't even constrain future cases brought under similar facts. But in a way, its insignificance makes it worse rather than better. This was not a great case. It was a petty case. And the Court's pettiness in interceding is, in its way, far more indicting of its character than many far more jurisprudentially consequential rulings.

But Do They Have Paradox-Absorbing Crumple Zones?

Eugene Volokh flags an interesting case out of Wisconsin lying on that intersection of religious freedom and anti-discrimination. Basically, a male Muslim prison inmate objected to being strip-searched by what appears to be (the record doesn't say explicitly) a transgender male guard. The inmate claims that part of his religious beliefs are that (a) sex is assigned by God at birth (so if you're born a woman, you're a woman) and (b) he cannot be seen naked by any woman save his wife. He's demanding a religious exemption from being strip searched by that guard under RLUIPA (he doesn't object to strip searches generally).

Reading about this, all I could think about it is: how would Breitbart cover this? Which hatred would win out? Would they back the Muslim prison inmate, or the transgender man whose job description includes seeing people naked?

I really think it's a toss-up.

No Qualified Immunity? For Prison Officials? In the 8th Circuit? What Is Happening?

First of all, if you're not reading Short Circuit (hosted on the Volokh Conspiracy blog), you're missing out. It's a great compendium of interesting circuit (and state appellate) court decisions, issued every week.

For example, this week we got Williams v. York, a deliberate indifference to medical needs claim brought by an Arkansas state prisoner. And -- get this -- the prison officials didn't get qualified immunity! If that sentence means nothing to you, you're most people. But if you have any familiarity with qualified immunity jurisprudence or prison litigation -- especially in the Eighth Circuit -- then it's jaw-dropping.

Williams benefited from drawing perhaps the best possible panel (Kelly, Arnold, and Smith). And he "benefited" because the facts really were shocking -- he experienced facial disfiguration, pus oozing from his gums, and mouth boils, all of which persisted for months after he first alerted prison officials to his condition and were obviously apparent even to laymen with no medical or dental training. In fact, Williams pulled out two of his own teeth before getting to see a dentist. Gross -- but also, powerful evidence.

So his case actually gets to proceed to trial. Congrats, Williams!

Also worth flagging is Rodriguez v. County of Los Angeles, a Ninth Circuit case involving sadistic beatings by prison guards of non-resisting inmates (the guards chanted the ritualistic "stop resisting!" while administering the beatings). The most interesting part is the officer's argument that the suit was barred because the prisoners failed to "exhaust administrative remedies" -- by which they mean, they failed to submit a complaint through the prison's internal review process. Generally that suffices to knock out a suit, but the court let it slide -- probably because the last time one of the inmates tried to file such a grievance he was put in the yard with rival gang members who somehow got their hands on razors and kicked the shit out of him.

Finally, McGirr v. Rehme tells a fascinating tale of a now-disbarred trial attorney whose been systematically shuffling his assets around to try and avoid a $42 million judgment granted to his own clients after he helped defraud them out of their settlement money. But here I think Short Circuit buried the lede -- the attorney in question is the husband of a federal district court judge! And, if footnote 9 is to be believed, several of the attorney's more "curious" transactions have been filtered through said wife.

But Can Hanlon's Razor Explain This?

You know, it wasn't long ago that if you told me the Texas prison system banned Shakespeare but permitted Mein Kampf, I'd have assumed it was due to some form of incompetence. And not, say, a genuine preference on the part of Texas prison administrators for White supremacist and Nazi literature over literary classics.

Now? Less sure.

“‘Mein Kampf’ is on the approved list because it does not violate our rules,” said a prison official.

 Lovely.

The Bank Robber Turned Georgetown Law Prof is a Bad Example of White Privilege

Shon Hopwood robbed a bank, and served 11 years in prison. While incarcerated, he studied in the prison law library and -- incredibly -- authored two cert petitions that were ultimately granted by the Supreme Court. This caught the attention of former Solicitor General Seth Waxman, who collaborated with Hopwood once the first of these cases was accepted for argument. Upon release from prison in 2009, Hopwood attended the University of Washington Law School and later clerked on the prestigious United States Court of Appeals for  the D.C. Circuit.

His story is already familiar to many lawyers -- his sentencing judge, Judge Richard Kopf of the District of Nebraska, publicly ate crow after admitting that he thought Hopwood was a low-life who'd never make anything of himself -- and for my part I distinctly recall reading his clerkship application when I worked for Judge Diana E. Murphy on the United States Court of Appeals for the Eighth Circuit. His was a remarkable tale, the sort of once-in-a-lifetime story one doesn't soon forget.

Now Hopwood is back in the news after he was hired to teach at Georgetown Law School. And a few people, including my good friend Joel Sati, have reacted by labeling his case one of "white privilege". I checked in with another friend and official privilege expert/skeptic Phoebe Maltz Bovy, and she was okay with the usage in this case. But -- despite generally being more comfortable with "privilege" discourse than Bovy -- I found it's deployment here to be off-base, and I thought I might explain why.

The obvious angle of attack, of course, would be to say that to talk of "white privilege" in Hopwood's case obscures his incredible accomplishments, talent, hard work, and so on. The retort to this would be that "privilege"-speak actually denies none of these things, but rather is the observation that a similarly-situated Black man would never be given the same opportunity Hopwood had for redemption. And so the crux of my hesitation is that I'm actually not convinced that this is true. I actually think academia would respond quite positively to a Black man whom, while in prison for bank robbery, authored two cert petitions that were ultimately accepted by the Supreme Court. That's an incredible (in the literal sense -- it defies credibility) accomplishment, and one that I think would be difficult to overlook no matter the race of the inmate. Of course, it is so incredible because it is breathtakingly rare -- there almost certainly isn't another inmate of any race who has managed to walk that particular path, and so the counterfactual remains wholly hypothetical.

However.

Let's say I'm right, and our hypothetical black male inmate did author two successful cert petitions and then was upon his release accepted into law school, allowed to take the bar, hired for a prestigious clerkship, and ultimately employed as an elite law professor. And suppose someone pointed to that man and said "Aha! There's no 'racism' in our prison system! Look at [Black Shon Hopwood]: He worked hard and made something of himself, and see how successful he is now. Instead of complaining so much about 'racism', why don't people try following his example?"

Such an argument would not be remotely compelling. Why not? Because the fact that a truly extraordinary individual can transcend the barriers of the incarceration system tells us virtually nothing about how that system operates on average men and women. To say to a regular prison serving out a prison term "your destiny is in your hands now: all you have to do is teach yourself law while incarcerated and become so proficient at it that you can write two briefs that will be accepted for hearing by the Supreme Court, and you can successfully reenter society" is a ridiculous joke. It is the beyond-parody version of thinking of civil rights in terms of the "talented tenth" (or tenth of a tenth of a tenth) instead of the "normal ninethieth." We would, in the case of "Black Shon Hopwood", rightly reject the notion that his story tells us anything useful about racial inequality or injustice as it pertains to persons convicted of crimes generally. But the argument that Black Shon Hopwood is abnormal and aberrational is inconsistent with the argument that White Shon Hopwood is illustrative and representative. The latter argument is alluring because such cases stick in the public eye. But the former argument is the right one.

In The New Jim Crow, Michelle Alexander speaks of the propensity to take the life stories of exceptional Black men and women -- the Barack Obamas and Oprah Winfreys -- and use them as baselines for the typical Black experience. These are not typical stories, and so they have little to tell us about what equality or fair opportunity means for the typical Black man or woman. The problem with our prison system, or our educational system, or our political system, is not that it makes it impossible for the ludicrously talented to succeed. As Bella Abzug famously put it, "Our struggle today is not to have a female Einstein get appointed as an assistant professor; it is for a woman schlemiel to get as quickly promoted as a male schlemiel." So too, we might say, the struggle for racial justice for the incarcerated is not to get a Black Shon Hopwood hired as a paralegal. It's to ensure that the typical Black inmate has the same opportunities on release as the typical White inmate* -- neither of whom is likely to resemble Shon Hopwood in any meaningful respect.

That White privilege interacts with our prison system is undeniable. And in particular, it is clear that White ex-felons have a far better chance of being hired or given other opportunities than the Black colleagues upon release (indeed, the former's chance is equivalent to that of a Black man with no criminal record at all). That's White privilege not in an exceptional case, but in an appallingly ordinary form -- not tied to an extraordinary, nearly sui generis case like Hopwood, but as applied to regular people who are not going and should not be expected to write multiple successful Supreme Court cert petitions. Focusing on Hopwood's case is not just wrong analytically, it perpetuates the destructive frame whereby we focus anti-racism discourse on exceptional cases and then blame everyday people for not living up to near-unattainable ideal.

Most people -- Black or White -- aren't exceptional. They're normal. And for anti-racist politics to help them, it must break the habit of relying on the high-profile and high-octane cases to establish the circumstances faced by the normal, the unremarkable, the banal, and the everyday.

* And that both have opportunities that substantively offer them a real chance to integrate back into society as equal members.

The Midwest's Racial Incarceration Problem

Sometimes, when we talk about racial injustice in America, we instinctively think about the American South. And sometimes, when trying to check that instinct, we say things like "sure, things are worse in the South -- but it's actually a problem nationwide."

But it's not always the case that the South is the worst offender. A very interesting post about comparative racial incarceration rates indicates that it may be the upper Midwest -- embodied by my beloved Minnesota -- that actually has the greatest incarceration problem.

The first graphic perhaps bolsters our intuitive notions about the South -- its overall incarceration rate seems far higher than the rest of the country. But if we zoom in solely on the Black male incarceration rate, that gets blurrier.

Here the evidence is more mixed: Some Southern states (Texas, Oklahoma, Louisiana) continue to do poorly -- but they're joined by states like Iowa, Wisconsin, and Pennsylvania. But even this graphic might be misleading, since it doesn't provide a comparative account of how many Black men are in jail versus their White fellows. Oklahoma, for example, seems to throw everyone in prison -- so it stands to reason that it puts a lot of Black people in prison too.

This graphic showcases the Black incarceration rate as compared to the White incarceration rate in each state. And here we can see how the center of gravity shifts decisively to the north, and particularly the upper-Midwest. Minnesota, for example, doesn't really imprison that many people -- but if you are in jail, you're almost certainly Black (or another racial minority -- Minnesota distinguishes itself for having a massive disparity not just for African-Americans, but for Latinos and Native Americans as well).


Now to be sure, we can debate whether the most important metric is the overall percentage of Black men put in prison, or the comparative Black/White figures. One could object that it is strange to excuse Oklahoma's mass incarceration of Black men by observing that it imprisons a ton of White men too. Much of the South performs "well" in the last graph simply because it has elected to pursue a mass incarceration strategy for everybody, and it's hardly a given that this decision is worth lauding. But certainly, these comparative figures are a relevant data point. And they're one where the South significantly outperforms many of its northern peer states. Those of us interested in racial justice need to own up to that.

Post-Contemporary Roundup

Yesterday, I had my first Ph.D subfield exam (in contemporary political theory). It was a delightful smorgasbord of Rawls, Walzer, Rorty, Anderson, and Landesmore; thus (hopefully) proving I am a smart young man who knows things about contemporary political theory.

As one can imagine, this has been taking up much of my time (well beyond the six hours I spent taking the actual test). But now it's over, and I can enjoy my ... one week before the Fall Term begins! Anyway, here are some links that have been cluttering my browser over the past few days.

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Glenn Beck has some surprisingly thoughtful and introspective remarks on Black Lives Matter. Good for him.

MEMRI says there has been a recent streak of articles in the Saudi press urging its readers to renounce and reject anti-Semitism. Sea change, or drop in the bucket? Who knows.

"For Israel, It’s No Jew Left Behind — Unless You’re Ethiopian".

Jeremy Corbyn must find it baffling how his friends mysterious keep on saying things to Jews like "F**k him, they should cut his throat."

Department of Justice to phase out the use of private prisons. Good news, though my suspicion (possibly unfounded) is that most private prison contracts are with the states, not the federal government.

North Carolina's Prison Minyan Requirement

Eugene Volokh points to an interesting case, Ben-Levi v. Brown, which challenged North Carolina prison regulations governing religious study. North Carolina generally allows group religious study by its inmates, but for Jews it requires either a minyan (ten adult male Jews) or the presence of a Rabbi. As one can imagine, either can be difficult to obtain in North Carolina penitentiaries, and Ben-Levi sued complaining of a First Amendment violation.

Like Professor Volokh (and Justice Alito), it seems to me that this is a clear Free Exercise violation. The state of North Carolina has no business telling Jews how they can and cannot practice Judaism. No doubt for many Jews the minyan requirement is a prerequisite to observing certain religious rites. But it is up to the Jew in question, not the state, to determine whether and how that rule applies to their individual circumstances. That's the essence of church/state separation: the state has no business interjecting itself into questions of theology. A general policy restricting group religious study (North Carolina mentioned a concern about it becoming a cloak for gang meetings) might present a tougher case, but there is no valid argument I can see for creating a specially restrictive rule for Jews -- even (especially) one based on North Carolina's interpretation of Jewish religious doctrine.

Unfortunately, the Supreme Court declined to hear the case (over a dissent by Justice Alito). Note that such a decision, while upholding the lower court rejection of Ben-Levi's claim, does not itself establish any precedent. Far more cases are appealed to the Supreme Court than it elects to hear, so one should be very cautious about reading too much into it. But a legitimate tsk-tsk can go out to the District Court and Fourth Circuit, who seem to have gotten it badly wrong here.

Does that Star-Spangled Banner Yet Wave

Checking in on Sheriff Joe:

A diet of bread and water is the punishment for dozens of Arizona inmates who allegedly defaced American flags placed in their jail cells.

[...]

"These inmates have destroyed the American flag that was placed in their cells," Arpaio said. "Tearing them, writing on them, stepping on them, throwing them in the toilet, trash or wherever they feel. It's a disgrace ... this is government property that they are destroying, and we will take action against those who act this way."

The flags are part of a push for patriotism in county jail cells that includes listening to the "Star-Spangled Banner" every morning and "God Bless America" every night over the intercom system.

Piping in patriotic songs and hanging flags in a notoriously abusive prison and then punishing the inmates with bread and water when they don't show adequate appreciation. It'd be difficult to make-up a better Orwellian America mash-up.

Gingrich Scores the Coveted Duke Cunningham Endorsement

Newt Gingrich -- who, let us recall, was forced to resign from Congress in disgrace after a slew of ethics scandals -- has just won the endorsement of a prominent former Congressman. Unfortunately, both the reason he's "prominent" and the reason he's "former" is because ex-Rep. Duke Cunningham (R-CA) is currently in prison after being convicted of bribery.

Cunningham also said Gingrich enjoyed the support of "80%" of the inmates who watched the debate. And while they can't themselves vote (being in jail and all), Cunningham thinks they might be able to sway their extended families.

(Note: This post does not reflect a change in my underlying belief that prisoners probably should be allowed to vote).

Cory Maye To Be Released

Former Mississippi death row inmate Cory Maye will be released shortly, after he and prosecutors agreed to a plea-deal that reduces his conviction to manslaughter, with a sentence of ten years (which he has already served).

Great congratulations to Radley Balko for getting this case on the radar screen, and also to my colleagues at Covington & Burling, which took up Maye's post-conviction defense.

Caring About Dead Non-White Americans is so PC

Adam Serwer has a good column up about recent House hearings on radicalization occurring in American prisons. The House Republicans who called the hearings wanted to focus on Islamic radicalization in prison. The problem, though, is that the evidence seemed to suggest this wasn't a serious problem at all. Only one terrorism plot since 9/11 has involved individuals who became radicalized Muslims in prison; by and large Islamic radicals tend to be middle-class and relatively educated.

What is a problem is radicalization of White prisoners who fall in with far-right hate groups like the Christian Identity movement. And so, Democrats on the committee wanted to talk about that for awhile. But Republicans were less than cooperative: Committee chair Rep. Peter King (R-NY) dismissed concerns about far-right radicalization because such groups were not "allied with a foreign power", despite the fact that (a) al-Qaeda is, of course, a non-governmental terrorist organization and (b) modern terrorism hardly requires an alliance with a foreign power to wreak massive havoc in America. Like their radical Islamic counterparts, right-wing terrorists in the United States also have an agenda of bringing down our government and instilling a new regime hostile to the very ideas of American liberty and equality. It's unclear why this threat is less serious simply because it's "homegrown". Indeed, it was Rep. King himself who originally launched the highly criticized hearings investigating homegrown Islamic radicalization (despite little evidence here as well that this was a serious problem).

Meanwhile, Rep. Dan Lungdren (R-CA) was even more blunt, deriding the "political correctness" of those who thought that recruitment success by violent White supremacist groups in prison was a valid area of congressional concern. Apparently, it's "politically correct" to think that terrorism targeting Americans who are non-White, or non-Christian, or otherwise don't resemble Dan Lungdren, is something Congress might want to know about. Glad to know Rep. Lungdren has my back on this.

Big BLACK Convicts

Jesus, Scalia, at least try to hide it:

Conditions in California’s overcrowded prisons are so bad that they violate the Eighth Amendment’s ban on cruel and unusual punishment, the Supreme Court ruled on Monday, ordering the state to reduce its prison population by more than 30,000 inmates.
[...]
[Justice Scalia, dissenting] added that the prisoners receiving inadequate care were not necessarily the ones who would be released early.

“Most of them will not be prisoners with medical conditions or severe mental illness,” Justice Scalia wrote, “and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Not to be left out, Justice Alito wrote his own dissent warning Californians that "The three-judge court ordered the premature release of approximately 46,000 criminals — the equivalent of three Army divisions." Ladies and gentleman, Rodney King is back -- and he's brought enough friends to fill the I Corps.

Yes, Californians, the Supreme Court has just unleashed an army of huge, muscular, probably dark-skinned convicts, coming to rape you and your family. Probably while you're sleeping (well, they'll wake you up to make you watch).

I don't mean to demean the problem of criminals being released before their sentences are up -- though California's three-strikes rules mean that some of these inmates are serving life sentences to ensure they never steal a set of clubs again. One way to avoid the hellscape of violent criminals running free is for California to release non-violent offenders, like our aforementioned golf-club thief.

But the bigger point is that violating the constitution has consequences. It means criminals go free, for instance. It means local budgets have to pay settlements to persons abused -- money that comes out of police, education, and sanitation budgets. It's a bad thing to violate the constitution. And if California wants to maintain the hyper-carceral state its been building up, well, it either has to pony up the dough for it, or it's going to have to settle for letting folks loose some of the time. Because maintaining a prison system with inhumane conditions isn't the American way.

PS: Anybody remember The Boondocks parody reality TV show "Big Bruthah"? Which White guy can last the longest living in a house filled with big BLACK convicts? God, I miss that comic strip.