Author: Alice Ristroph

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Wheel of Justice

wojOnce upon a time, I lived in the little town of Picayune, Mississippi.  This morning I discovered that the Picayune Police Department has adopted a novel approach to fighting drug crime:  the Wheel of Justice.  It seems that the police department puts names and photos of suspected drug dealers on a giant, colorful wheel.  At some  public venue, the police spin the wheel to choose which drug dealer to arrest that week.  On the department’s website, you can watch the video and see which suspects have been identified and apprehended.

Now one obvious question is, if the police have grounds to arrest each person on the wheel, why not arrest them all?  And it’s possible that they do just that, or try to.  It’s possible that the wheel is a publicity stunt that’s not really doing any selection work.  The suspect selected by the wheel is the one arrested with the most fanfare, but the police may continue to seek other suspects behind the scenes.  In fact, two suspects who’d been spared by the wheel apparently showed up in court on other matters, were recognized by a police officer, and arrested there.

All the same, resource constraints mean that police departments do face choices about which crimes to investigate, and which suspects to pursue.   Suppose that the wheel is in fact doing the work of selection.  Is that a good idea?  Professor Bernard Harcourt has argued for more randomization in the criminal justice system.  Randomization might be a way of lessening the impact of racial bias, and it might be a more honest selection principle than the pretense that we know who is most dangerous.  Of course, whether randomization is permissible, or socially tolerated, might depend on the purpose for which it’s used and especially, which pool of people have their names in the hat.

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Force and Resistance

Last week I wrote about the term “violence specialists” as a description of police officers and military personnel. It’s nearly impossible to discuss violence without encountering disputes about the definition of the word. Not surprisingly, violence is defined differently depending on the context, and on the political consequences of using that label. So should we just avoid the word violence? Some argue that violence is inevitably associated with illegitimacy and wrongfulness, and so prefer to use the word “force” when describing physical restraint, compulsion, or injury imposed by state officials. I’ve recently come across an official definition of police force that suggests that this word may be equally contested. Does force require the target’s resistance? Must a subject “resist to the utmost” before we say the police have used force against him? More after the jump.

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Violence Specialists

In the terminology of a recent book by two economists and a political scientist, “violence specialists” are those who use violence professionally. Violence and Social Orders is a grand theory of human societies (the book’s subtitle is “A Conceptual Framework for Interpreting Recorded Human History”) expounded in rather dry, matter-of-fact prose. The matter-of-fact tone makes the phrase “violence specialists” particularly striking. In a contemporary society like the United States, the authorized violence specialists include the military and police forces. But we don’t tend to speak of our military and police in this way. Indeed, it might be more common to hear police and military personnel described as potential targets of violence than as agents of violence. The police, and the troops, are often praised as “those who put their lives on the line.” And we say, abstractly, that police and military forces keep us safe or protect the public, but the rhetoric of safety and protection tends to obscure the violent means by which safety is ostensibly secured. Given our usual ways of speaking, “violence specialists” is an attention-grabbing phrase.

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Jerry Cohen

I was sad to learn, via Crooked Timber, that the philosopher Gerald Cohen died yesterday.  Law professors haven’t paid the same attention to his work that they have to Rawls or classical liberal philosophers, but that’s our loss.  He had much to say to those interested in socialism as an idea, and not just as an epithet, including the nicely titled If You’re an Egalitarian, How Come You’re So Rich?.  But beyond Cohen’s intellectual gifts, he was an extraordinary human being.  Crooked Timber has some moving tributes that convey a sense of Cohen as a person.

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Why so… socialist?

Sometime in the past few days, just in time for the President’s birthday, posters of Obama in Joker-style makeup appeared on a Los Angeles overpass. The images quickly spread across the internet and have sparked predictable praise from the right or criticism from the left. Whether or not the posters are unduly offensive to President Obama, they are a serious insult to Heath Ledger’s Joker and his gleeful nihilism. What strikes and fascinates me is the poster’s angry incoherence: under the image of Obama is the word “socialism.” Did this artist even see The Dark Knight? Or perhaps I should ask, what does this artist think socialism is, anyway?

Consider that socialism is associated with the concepts of “central planning” or a “planned economy,” in which a centralized authority manages everything (or at least the economy) according to plan. Now, thanks to a conversation with Brooklyn Law prof Nelson Tebbe, who offered a profound analysis of The Dark Knight, I watched that film with the close attention of a serious academic, ready to learn what it could teach me about violence. I even read the script. And the Joker’s worldview seems pretty antithetical to socialism. Here’s what the Joker has to say about planning:

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One more thought on methods of execution

Medellin v. Texas is the recently decided case involving a Mexican national on death row in Texas and a dispute about when the international commitments of the country as a whole bind individual states within it. In particular, one of the key questions was whether a decision by the International Court of Justice was “self-executing,” or if instead further Congressional action would be required to impose obligations on the state of Texas. (The U.S. Supreme Court decided that the ICJ judgment was not self-executing.) After the Court announced its opinion, a colleague said to me, “Of course, none of this would be a problem if we only had self-executing prisoners.”

Gallows humor, literally. Interestingly, though, self-executing prisoners are not entirely unknown to history. As made famous by Socrates, hemlock was a standard method of execution for a time in ancient Athens: the condemned would be presented with a cup of hemlock and “persuaded” to drink it. Hemlock stands in stark contrast to the other methods of execution reported in Danielle Allen’s study of Athenian punishment: stoning, death by sword, and a form of suffocation or crucifixion in which the prisoner was attached to a board by iron collars. Unlike these gruesome and starkly physical punishments, hemlock seemed to preserve the bodily integrity of the citizen and avoided bloodspilling. It may have also been attractive as a means to preserve at least the image of consent: the executioners and other Athenians could claim that the condemned person consented to be punished.

Now, it’s plausible that the historical Socrates actually consented to self-execution. (He was 70 years old, and by some accounts had something of a death-wish.) But the limited available evidence suggests that most Athenians who swallowed hemlock did so only to avoid a more painful and bloody alternative. And no one pretends that Texas could solve a problem like Medellin just by offering him a lethal cocktail instead of strapping him down and injecting him with one. (I say a little more about Socrates and hemlock, and a lot more about the nonconsensual nature of punishment, in Respect and Resistance in Punishment Theory.)

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What is a judicial fiat, anyway?

Justice Scalia’s strong words in Baze v. Rees, directed at Justice Stevens’s concurrence in the same case, attracted praise at the Volokh Conspiracy (and from Dave Hoffman here) last week. In Baze, Justice Stevens announced that he now believes the death penalty to be cruel and unusual punishment and a violation of the Eighth Amendment. Justice Scalia replied that “[p]urer expression cannot be found of the principle of rule by judicial fiat.” To which my esteemed colleague former-Judge-and-now-again-Professor Paul Cassell (guest-blogging at Volokh) replied, “Amen.”

Fiat_Barchetta.JPGI’m surprised that most discussions of the Scalia-Stevens dispute (like Scalia’s own concurrence) fail to mention the last paragraph of Stevens’s opinion, or the way Stevens actually voted. After explaining his view that capital punishment is unconstitutional, Stevens concurred in the judgment that Kentucky’s method of execution was constitutionally permissible. Here’s how Stevens concluded:

The conclusion I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents … I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court’s judgment.

What constitutes judicial fiat? Is the argument that a judge musn’t even say that he thinks a practice violates the constitution, even if he is then going to recognize and follow precedents to the contrary?

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The Road to Hell

Two notes about Baze v. Rees, the Supreme Court decision that upholds Kentucky’s method of lethal injection and almost certainly ends the quasi-moratorium on executions.

First, the plurality and concurring opinions are full of references to torture. Why would that be? Well, if the cruel and unusual punishments clause of the Eighth Amendment doesn’t prohibit all death sentences (several Justices are clearly of this view), and if it doesn’t require that prison sentences be proportionate to the crimes for which they are imposed (at least Justices Scalia and Thomas are of this view), and if it doesn’t impose limits on prison conditions or specific acts of force inside a prison (Justice Thomas has taken this position, and Scalia seems to agree with him), the Eighth Amendment starts to seem pretty inconsequential. To show that this amendment is not an empty provision, it’s helpful to identify something it does prohibit. Like… torture. Justice Thomas’s concurrence in Baze begins with a list of gruesome practices that, in his view, are prohibited by the Eighth Amendment, such as burning at the stake, “gibbeting,” and “emboweling alive.” The Eighth Amendment does mean something after all: punishments are cruel (and unconstitutional) when they involve torture.

But I wouldn’t conclude that the Justices who say the Eighth Amendment prohibits torturous punishments would necessarily find current practices of allegedly investigative torture to violate the constitution. Instead, I’d expect to see the argument that torture without a specifically punitive intent doesn’t implicate the Eighth Amendment at all. In Kansas v. Hendricks, the majority took a similar approach to find that indefinite confinement for sex offenders did not violate the ex post facto or double jeopardy clauses — those clauses apply to punishments, and Leroy Hendricks’s confinement, the majority reasoned, was not intended as punishment.

Which leads to a second observation about Baze, and about Justice Thomas’s concurrence in particular: good intentions provide a lot of constitutional mileage. Where do they take us?

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False(?) Etymologies

I love a word with a good story, especially one with a plot twist. One such word is Neanderthal. Many years ago, my father told me of a dainty German scholar named Joachim Neumann, a theologian and hymnist with special interest in the ancient Greeks. Joachim considered “Neumann” a coarse and ugly name, ill-befitting a man of his refinement, so he changed it to the Greek for “new man”: Nea Ander, or Neander. With his new surname, Joachim became a beloved figure in his little German town, and eventually the entire valley (or dale, or thal/tal in German) was named in his honor: Neander Thal. Later, of course, early human remains were found in that same valley. So today, when we think of Neanderthals, we think not of refined scholars or classical Greek ideals but of hairy stooped brutes. The first time I tried to verify the story, I couldn’t find anything, and I worried that this lovely etymology would turn out to be false. A quick internet search today, though, suggests that my father didn’t make this up—or if he did, he’s not the only one spinning this yarn.

In Leviathan, Thomas Hobbes makes another intriguing word claim: that deliberation is the opposite of liberation. The sum of our desires, aversions, hopes, and fears is called deliberation, Hobbes says, “[a]nd it is called Deliberation, because it is a putting an end to the Liberty we had of doing, or omitting, according to our own Appetite, or Aversion” (Leviathan, ch. 6). Hobbes sometimes wrote in Latin, so I thought he’d know his Latin etymologies. Deliberation as an end to liberty—that would be a great word story. The implications for proponents of deliberative democracy! I eagerly consulted the Oxford English Dictionary for more details…

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One train may hide another

Readers interested in criminal procedure, or constitutional law, or law and sexuality, or just a good read with some fascinating historical details, might enjoy David Sklansky’s “One Train May Hide Another”: Katz, Stonewall, and the Secret Subtext of Criminal Procedure. Without rejecting the commonplace claim that the development of constitutional criminal procedure was a matter of racial justice, driven largely by the civil rights movement and efforts to end mistreatment of black defendants, Sklansky suggests that this area of law was also shaped by concerns about “the long, sordid history of the policing of sexuality”–and the policing of homosexuality in particular. Of particular interest, given Larry Craig’s arrest last year, is the discussion of spying in public toilet stalls. Apparently, this practice was a standard police tactic used to detect homosexual conduct and arrest those who engaged in it. Katz v. United States focuses on the public phone booth, but the “secret subtext” may have been a concern about privacy in the public toilet stall.

And, one train may hide another. For me, the appeal of this article is not just the substantive argument, but an introduction to Kenneth Koch’s poem from which Sklansky takes the title phrase. Koch was traveling in Kenya and saw a sign at a railroad crossing: “One train may hide another.” The line inspired him, and here’s how his poem of that title begins:

In a poem, one line may hide another line,

As at a crossing, one train may hide another train.

That is, if you are waiting to cross

The tracks, wait to do it for one moment at

Least after the first train is gone. And so when you read

Wait until you have read the next line–

Then it is safe to go on reading.

In a family one sister may conceal another,

So, when you are courting, it’s best to have them all in view

Otherwise in coming to find one you may love another.

The whole poem is here. And thanks to Melissa Murray, who recommended Sklansky’s article to me.