Saturday, November 25, 2023

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.

Wednesday, November 22, 2023

Bruen Does Not Care About Your Due Process Rights

The landmark Bruen decision inaugurated a lot of chaos in the field of Second Amendment jurisprudence, but perhaps no follow-up case caught the public's eye quite like the 5th Circuit's ruling striking down prohibitions on persons under domestic violence restraining orders from possessing guns. I characterized that ruling (United States v. Rahimi) as "(a) insane and (b) absolutely defensible under the Supreme Court's Bruen decision," but I also flagged it as a potential candidate for Supreme Court reversal. The Supreme Court did grant cert in Rahimi, and the consensus amongst legal observers following oral argument is that the Fifth Circuit's opinion is toast.

One last ditch argument we're seeing by pro-gun zealots to try and avert this outcome is to frame Rahimi as a defendant's rights issue. Fifth Circuit Judge James Ho, in an opinion Chris Geidner characterized as a "judicial version of a post-argument supplemental filing," appealed to this principle -- citing a bevy of criminal law due process cases which protected the rights of even violent offenders and concluding that "if government must turn 'square corners' when it comes to the removal of illegal aliens, surely it must do the same when it comes to the basic rights of our own citizens." Josh Blackman made a similar argument, contending that it will be difficult to write an opinion in Rahimi that upholds the law in question that doesn't similarly pare back other rights of those accused of violent crimes.

Let's start by making one thing clear. Blackman states that "the reason why the Court may 'clarify' Bruen [in Rahimi] is because certain members of the Court don't like the results that it yields." I agree. As I wrote shortly after the Fifth Circuit's decision came down:

[I]f the Supreme Court reverses [Rahimi] -- and they might -- their reasoning will almost certainly purport to be based on some alternate assessment and reading of the historical sources. But this will be a naked smokescreen, and everyone will know it. If the Court reverses the Fifth Circuit here, it will be entirely and solely because the Court finds it too unreasonable and intolerable to permit domestic abusers free reign to carry arms -- a contemporary policy judgment anyway you look at it, no matter how much effort is or isn't expended to cloak it in some faux-historical garb. None of these judges abide by the rules they purport to lay out.

But while I agree that the results-tail will be wagging the doctrinal-dog, the "defendant's rights" argument is not a bulwark against the sort of reasoning. Rather, it is itself a form of results-oriented reasoning that Bruen -- if applied "faithfully" (and again, quotation marks because nobody is even trying to apply it "faithfully") -- expressly disclaims the legitimacy of. Put differently, to the extent Rahimi tries to present itself as faithful to Bruen, the "defendant's rights" argument is incredibly easy to dispense with. Blackman and Ho's position, by contrast, only works if one assumes Bruen does not mean what it says -- or, as I've put it, that Bruen is a one-way ratchet where social policy arguments in fact are permissible ... but only if they stand in support of a pro-gun position.

Let's review what the Bruen rule is. It's quite straightforward: where the "plain" language of the Second Amendment covers given conduct, government regulation of said conduct will only be upheld if it is consistent with the framing-era history of gun regulation. That's the alpha and the omega. No weighing of social policy consequences is permitted, period.

This approach generally has been conceptualized as a means of striking down even laws about guns that seem eminently sensible -- if they lack the relevant historical analogue, they're unconstitutional no matter how salutary they might seem. But in concept, what's good for the goose is good for the gander: a law about guns that seems arbitrary and unfair, but which does have relevant historical analogues, must be upheld no matter how ridiculous it might seem.

Suppose it turned out that there were in many states at the founding era laws that permitted anyone with a last name starting with "M" to be disarmed at the discretion of the state governor. For purposes of this hypothetical it doesn't matter why these laws were passed, and we can all agree that would be a tremendously silly and unfair law. Nonetheless, if a state today passed an identical law, under Bruen it should be upheld: the only question we're allowed to consider is "is there a historical analogue," and by stipulation there is one here. Engaging in the abstract moral theorizing about whether this law is "fair" -- no matter how obvious the answer might seem in this case -- is exactly what Bruen says courts are not allowed to do.

Similarly, suppose we had in Rahimi something that Justice Thomas in Bruen expressly denied was necessary: a "clone" law -- at the founding, there were regularly laws exactly like the federal law at issue in Rahimi throughout the states. In such a circumstance, even Ho and Blackman would have to concede (I think?) that Bruen would compel the federal law in Rahimi to be upheld, and that the "defendant's rights" argument would not enter into it. The law has a historical analogue, and so the discussion ends. That's what Bruen demands.

Of course, there was not a "clone" law at the framing to the federal prohibition on gun possession by persons under domestic violence restraining orders. So the nominal question in Rahimi is whether the laws that did exist are sufficiently analogically comparable to the federal law at issue so as to validate the latter. But that analysis, too, is completely unconcerned with any alleged unfairness to prospective criminal defendants. Either the historical analogues are sufficiently comparable, or they're not. If they are, then it doesn't matter that the results might seem unfair to potential criminal defendants any more than it matters if the results (pointing the other way) might seem unfair to domestic violence victims, or for that matter if the results seem unfair to persons whose last names start with "M". In all cases, Bruen demands we be studiously indifferent to this unfairness.

Bruen, in short, does not care about due process rights. Or put slightly differently, Bruen says that the only process anyone disarmed by the government is "due" is a determination about whether the disarmament is sufficiently analogous to practices that existed at the founding. If it is, then you can be disarmed. If it isn't, then you can't. No other consideration of "fairness" comes into play. 

It is in fact a misapprehension to say that the reason Rahimi could be disarmed consistent with Bruen is because "we're willing to reduce constitutional protections for prospective criminal defendants." If Rahimi can be disarmed, it isn't because he's a prospective criminal defendant, it's because he falls into a category of persons sufficiently analogous to persons who were deemed to be disarmable at the time of the framing. For this reason, a reversal in Rahimi poses no threat to other criminal defendant rights precedents, because in no other domain are constitutional rights treated in this absurdly reductive fashion (here we really see the lie that Bruen was about treating the Second Amendment "the same as" other constitutional rights; no other constitutional domain has a doctrine that's anything close to what Bruen proposes).

In short, all an opinion reversing the Fifth Circuit in Rahimi has to do to "contain" its ruling is state its conclusions in the terms Bruen prescribes: that the historical analogues to the challenged federal law are sufficiently comparable so as to render the latter constitutional. Once it does that, it need not and under Bruen should and cannot say a word about whether this outcome is "fair" or not to people who could prospectively be charged with a crime.

To be clear one more time: even if this is the approach the Supreme Court takes in reversing the Fifth Circuit, it will be a lie. We'll all know that the actual reason behind the Court's decision will be policy squeamishness towards the outcome. But we also know -- already knew, but Ho and Blackman helpfully confirmed it -- that a contrary ruling (or a dissent) will also be driven in part by social policy considerations and abstract arguments about fairness. Even Bruen's putative defenders don't actually take its strictures seriously, which is one more reason why the decision deserves nothing but scorn.

Monday, November 20, 2023

The Fluid Dynamics of Pill Popping

This is a very silly question that I've been obsessing about for weeks. It's possible I've even written about it before, though I can't find any trace of that. It's a question that simultaneously feels so basic that science has to have an idea about it, but also I can't think of a single practical application that would prompt anyone to study it.

Let me lay out the scene.

I have a bottle of pills, from which I take one pill each day. To do this, I tilt the pill bottle and "pour" one pill out onto my hand, then return the bottle upright and place it back on the shelf. Other than this, I don't shake or mix the pill bottle in any way.

When the pill bottle is close to -- but not quite -- empty, I get a new bottle. At this point, I pour the remaining pills from the old bottle into the new bottle (again, without otherwise mixing or shaking). So if I had 10 pills left from the old bottle, and 90 pills in the new bottle, the new bottle now has 100 pills (including the 10 "old" pills poured over the top). Then I start the cycle again of taking one pill a day.

Here's my question: on average, how long do we predict it would take me to consume all of the "old" pills (assuming I don't vary my routine)?

One answer is that the order of the pills being poured out is essentially random (I have an equal chance of "selecting" any given pill), and so the answer of how long it will take me to pour out the ten old pills is the same as the answer for any randomly selected ten pills. But it seems wrong to suggest that the order is in fact random -- the fact that these pills were specifically placed on the top of the pile of pills should mean that they have a higher likelihood of being poured out first (right?).

So another answer at the opposite end of the spectrum would be that since the old pills are at the top of the pill bottle, they should be the first ten pills that I consume (or close to it). Something like that is the intention of pouring them onto the top of the pile. But this also strikes me as unlikely -- intuitively, I feel like the act of pouring does not necessarily result in the "top" pills necessarily being poured out first. It does some mixing on its own. More broadly, when I imagine the physical act of the pile of pills cascading down the side of the pill bottle into my hand, it's very easy for me to imagine pills that were not on top skipping ahead and getting into my hand first.

In short, I suspect that I should pour the "old" pills more quickly than the new ones by some indeterminate factor -- more quickly than random selection, less quickly than "they'll be the first ten". It's a question, in essence, about the "fluid dynamics" of pills, which is a concept that tickles me for some reason.

This actually would be pretty easy to measure in concept: give each pill a number, instruct research subjects on my routine, and then have them mark down the number of the pill they pour out each day. But has anyone actually investigated this? On the one hand, it feels like utterly pointless knowledge. On the other hand, scientists love finding out about the properties of random subjects!

Anyway, for anyone working in a germane field, this is a free research proposal for you. Have at it.