Concurring Opinions » Alice Ristroph

Wheel of Justice

Alice Ristroph — Fri, 28 Aug 2009 16:17:03 +0000

Once 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.

Force and Resistance

Alice Ristroph — Fri, 21 Aug 2009 16:38:04 +0000

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.

“When Is Police Violence Justified?” asks Rachel Harmon of UVA in a fascinating recent article. Though “violence” appears in the title, most of the article refers to “use of force” instead. What counts as force? Harmon quotes a federal consent order to define “police force”:

any physical strike or instrumental contact with a person; any attempted physical strike or instrumental contact that does not take effect; or any significant physical contact that restricts the movement of a person. … The term does not include escorting or handcuffing a person, with no or minimal resistance. (emphasis mine)

Under this definition, an “ordinary” custodial arrest involves no use of force, even if the suspect is handcuffed and placed in the back of a police cruiser. He’s been subject to physical contact that restricts his movement, but unless he resists, no force has been used. Even minimal resistance is not enough; the arrestee must really fight back before the arrest is forceful.

This is not the only context in which force has been linked to resistance. Under the common law, the crime of rape was defined as “the carnal knowledge of a woman forcibly and against her will.” Force and non-consent were two separate requirements, and to convict of rape, the state had to establish that the defendant used force. Many courts interpreted the force element as a resistance requirement: if the woman didn’t resist, the sex wasn’t forced and it wasn’t rape. One (in)famous opinion called resistance the “sine qua non [of] the crime of rape,” and went on to explain that minimal resistance wouldn’t suffice for a conviction. Instead, the woman must give “her utmost” resistance; “there must be the most vehement exercise of every physical means or faculty within the woman’s power to resist the penetration of her person….”

In the past few decades, many jurisdictions have abandoned formal force or resistance requirements as elements of rape. And rape reform advocates have urged that we view all nonconsensual sex as not just forced but violent, whether or not the victim fights back or winds up bloodied and bruised. It’s unclear whether these reform efforts have had substantial effects on actual rape convictions. But the old force-resistance link of rape law seems strikingly parallel to the force-resistance requirement in the above definition of police force. My own view is that the resistance requirement defines force too narrowly. In the context of policing and punishment, it leads us to forget what Robert Cover urged readers to remember—“that most prisoners walk into prison because they know they will be dragged or beaten into prison if they do not walk.” Like Cover, I “do not wish us to pretend that we talk our prisoners into jail.”

[Cross-posted at Balkinization.]

Violence Specialists

Alice Ristroph — Tue, 11 Aug 2009 19:21:30 +0000

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.

Unless you think the word violence always implies that the force in question is used wrongfully, the phrase “violence specialists” doesn’t itself pass judgment on the actions of police or soldiers. Max Weber famously described the state as the entity with a monopoly on legitimate violence, and one could view the police and military as the agents of that distinctively legitimate violence. But there’s something to be gained, I think, by directly acknowledging the extent to which police and military forces are agents of violence and not only noble, self-sacrificing targets of it.

Among other things, thinking of police officers and soldiers as violence specialists might prompt some uncomfortable, but necessary, reconsiderations of appeals to their safety. There seems to be a strong presumption that even amidst the ritual expressions of gratitude toward “those who put their lives on the line,” we should do everything possible to prevent their lives from actually being put on the line. In Fourth Amendment jurisprudence, “officer safety” has become a talisman used to justify shrinking protections for individual privacy and broader police discretion. In the national security context, the safety of the troops seems to have similar talismanic appeal. It’s nearly taboo, I think, to suggest that officer safety or troop safety is one goal among many rather than a priority to be pursued at all costs. Thinking of the police and the military as violence specialists acknowledges both the risks these professionals face and the risks they impose.

[Cross-posted at Balkinization.]

Jerry Cohen

Alice Ristroph — Thu, 06 Aug 2009 14:36:47 +0000

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.

Why so… socialist?

Alice Ristroph — Tue, 04 Aug 2009 22:27:00 +0000

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:

Do I really look like a guy with a plan, Harvey? I don’t have a plan… The mob has plans, the cops have plans. You know what I am, Harvey? I’m a dog chasing cars… I wouldn’t know what to do with one if I caught it… I hate plans. Yours, theirs, everyone’s… Schemers trying to control their worlds. I’m not a schemer, I show the schemers how pathetic their attempts to control things really are.

If the Joker were an economist, wouldn’t he be a free-market guy?

Of course, coherence is no prerequisite for First Amendment protection, and I disagree with commentators who question the artist’s right to compare the President to a crazed movie character. These posters remind me a little of an incident I discussed here on Concurring Opinions a few years ago – a high school student’s suspension for displaying a banner that read “Bong Hits for Jesus.” As I said then, it’s not entirely clear what “Bong Hits for Jesus” means. It seems vaguely pro-marijuana, and perhaps disrespectful to Jesus, but at best it only gestures at ideas. These Obama posters do the same, and I think I get their message: “Obama is evil, and socialist, and I have no clue what socialism is, but I know it’s evil, like Obama.” Sounds like protected speech to me.

Many thanks to Dan Solove and his co-bloggers for the invitation to join them this month.

One more thought on methods of execution

Alice Ristroph — Tue, 29 Apr 2008 01:10:27 +0000

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.)

In contemporary discussions of the death penalty, some seem to believe that it is especially important that the state kill the prisoner rather than the prisoner kill himself (or die of natural causes–thanks to Doug Berman for this link). When Gary Gilmore was on death row in Utah, he overdosed on drugs that his girlfriend had smuggled into the prison. State officials rushed him to the hospital, pumped his stomach, and only later—once he’d been brought back to health—executed him.

Allen’s book reports that those who introduced hemlock to Athens also moved executions out of the public view and behind prison doors. Not only was no blood spilled, but the public couldn’t witness any bullying that was required to make the prisoner “consent” to poison himself. Hemlock, possibly the first effort to introduce a humane method of execution, appears to have been part of a broader campaign to make punishment more palatable by disguising it and removing it from public scrutiny.

All of this makes me wonder if there aren’t some complicated political side effects to campaigns to ensure humane methods of execution. It’s been argued, and not just by me, that special legal procedures in capital trials might actually entrench support for capital punishment by giving it the appearance of orderliness, predictability, and rationality. Might a new jurisprudence of execution methods do the same thing?

Of course, opponents to the death penalty are usually pursuing many different goals. It’s rational to hope that the death penalty is abolished, and at the same time to try to ensure that as long as capital punishment is legal, it take place in the most humane way possible. But it’s worth noticing that success on one front might undermine progress on the other.

What is a judicial fiat, anyway?

Alice Ristroph — Tue, 22 Apr 2008 17:45:36 +0000

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.”

I’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?

When I read Stevens’s concurrence last week, the last paragraph reminded me of one of then-Judge Cassell’s opinions. In 2004, as a federal judge in the district of Utah, Cassell authored a widely noted opinion in United States v. Angelos (345 F. Supp. 2d 1227). Weldon Angelos was a first-time offender convicted of selling marijuana. The government applied a federal firearms statute with severe mandatory minimums, thus ensuring what was almost certainly an effective life sentence for Angelos. Judge Cassell wrote, “[t]he court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational.” But out of deference to Congress and to existing constitutional precedents, Judge Cassell “reluctantly” applied the unjust, cruel, and irrational mandatory minimum and sentenced Angelos to 55 years and a day.

A fiat is (besides an Italian car) an authoritative (and maybe, an arbitrary) order, one that translates automatically to action. The word fiat comes from Latin for let it be done. The funny thing about Stevens’s concurrence is that he didn’t let it be done — or rather, he let executions rather than his own will be done. He refused to let his own judgment that capital punishment is unconstitutional translate to a vote against capital punishment in Kentucky.

At any rate, seems odd to impugn Stevens for judicial fiat without at least mentioning the way he voted in Baze.

Image of Fiat’s brilliant red Barchetta courtesy of www.leepurr.co.uk.

The Road to Hell

Alice Ristroph — Thu, 17 Apr 2008 01:22:50 +0000

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?

According to Justice Thomas in Baze, Kentucky’s execution methods don’t violate the Eighth Amendment, whatever pain they do or don’t inflict, because the state didn’t adopt these methods with the intent to inflict pain. “A method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain…” Referring again to burning at the stake, disemboweling, and drawing and quartering, Thomas writes

[W]hat defined these punishments was that they were designed to inflict torture… they were intended to produce a penalty worse than death…. The evil that the Eighth Amendment targets is intentional infliction of gratuitous pain… (emphasis in original).

Back over on the torture front, good intentions are John Yoo’s trump card as well. But here it’s not whether a public official intended to torture, but what he hoped to accomplish, that counts. Asked whether any law would prohibit the president from crushing the testicles of a terrorist’s child, Yoo replied, “I think it depends on why the president thinks he needs to do that.” Audio of the exchange here, or read Yoo’s memos for his more developed argument that self-righteous torture, torture inflicted with good intentions for the safety of the country, is legal.

In general, I suspect that the Eighth Amendment will remain pretty ineffective if its protections turn on judicial constructions of the state’s punitive intent, penological purposes, and other good intentions. I have more to say on these issues in a forthcoming article called State Intentions and the Law of Punishment (not up on SSRN yet, but I’ll post it soon). Moral philosophers — and many legal doctrines — tend to reject the notion that the permissibility of an act turns on the actor’s good intentions. Why should the permissibility of state violence turn on the state’s intentions?

Dave Hoffman raises other interesting questions about Baze v. Rees.

False(?) Etymologies

Alice Ristroph — Wed, 16 Apr 2008 01:53:36 +0000

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…

…and discovered that Hobbes apparently made the whole thing up. According to the OED, deliberate comes not from libertas or liber (the Latin roots of liberty), but from libra—the balance, or scales. To deliberate is not to end liberty, but to balance or weigh. How sensible. How plausible and predictable. How disappointing.

One train may hide another

Alice Ristroph — Sat, 12 Apr 2008 01:09:33 +0000

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.

Thou shalt not commit a neuroscience.*

Alice Ristroph — Wed, 09 Apr 2008 01:14:46 +0000

Yesterday evening, Harvard Law School hosted a panel on the question, “Should Criminal Law Be Reconsidered in Light of Advances in Neuroscience?” Moderated by Oliver Goodenough, the panel featured Joshua Greene, Jerome Kagan, Stephen Morse, and Amanda Pustilnik. Greene is known for his work in “experimental philosophy,” and he and Morse reprised earlier arguments about whether new research on the brain is likely to produce changes in doctrines of criminal responsibility. As I understood Greene, he’s hopeful that one day we’ll realize that retributive approaches to punishment depend on erroneous assumptions about the human brain. When we properly understand humans as mechanical agents whose actions are always externally caused, it will seem silly to punish as a way of “holding criminals responsible,” and happily, the criminal law will become purely consequentialist.

Now, I’m no fan of retributivism. But I’m skeptical that more knowledge of the brain is going to unsettle retributive arguments and the associated attributions of responsibility. (Here, I think I’m in agreement with Jeff Lipshaw’s take on experimental philosophy: many moral claims are just not provable or disprovable.) I suspect that whatever we learn about the brain processes of criminals, some persons will look at those brain processes and say, “this criminal deserves to be held responsible; this criminal deserves to be punished.” Put differently, one might say that “responsibility” is a normative judgment, not a fact about the causal mechanisms of the human brain. Whether a defendant “is” responsible depends on whether we (the punishers) decide to hold him responsible. To take an example raised last night, did new facts about the juvenile brain, or about developmentally disabled persons, dictate the outcomes in Roper v. Simmons and Atkins v. Virginia? I don’t think so. It is still the case that some will look at all the empirical information available about Daryl Atkins—IQ tests, medical records, brain scans, whatever—and say he deserves to die, and others will look at the same information, and say he does not. Indeed, Atkins the decision didn’t necessarily save Atkins the defendant: the decision allowed states to choose the process by which defendants would be classified as developmentally disabled or mentally retarded, and the state of Virginia decided this was a jury question. In 2005 a jury decided that Atkins was sufficiently mentally competent to be eligible for death. (Atkins’s reinstated death sentence was commuted to life imprisonment in January 2008 for independent reasons related to prosecutorial misconduct.)

All in all, I think it’s pretty hard to unseat the belief in deserved punishment by introducing new facts. (As I’ve argued, the evidence suggests that new facts can influence judgments about how much punishment is deserved, but that’s a different issue.) “Wrongdoers deserve to be punished” is a non-falsifiable claim, an article of faith that can be disproved no more than God’s existence.

*With apologies to W.H. Auden.

Image credit: Princeton’s Suggestive Contour Gallery. At last night’s panel, someone cited research indicating that subjects find academic papers that include pictures of brains to be more persuasive than otherwise identical papers that lack the brain pictures. I hope that works for blog posts.

Early Morning, April 4

Alice Ristroph — Fri, 04 Apr 2008 15:19:38 +0000

Martin Luther King, Jr. was killed forty years ago in Memphis. Much attention has been paid to the last paragraph of his last sermon:

Well, I don’t know what will happen now. We’ve got some difficult days ahead. But it doesn’t matter with me now. Because I’ve been to the mountaintop. And I don’t mind. Like anybody, I would like to live a long life. Longevity has its place. But I’m not concerned about that now. I just want to do God’s will. And He’s allowed me to go up to the mountain. And I’ve looked over. And I’ve seen the promised land. I may not get there with you. But I want you to know tonight, that we, as a people will get to the promised land. And I’m happy, tonight. I’m not worried about anything. I’m not fearing any man. Mine eyes have seen the glory of the coming of the Lord.

But the whole sermon, delivered forty years and a day ago, is worth a read.

Torture for Tots

Alice Ristroph — Wed, 02 Apr 2008 18:37:15 +0000

Readers of Larry Solum’s Legal Theory Blog might have noticed yesterday abstracts for several new papers from heavy hitters in the legal academy. My favorite of these April 1 abstracts was the Cass Sunstein-Adrian Vermeule paper on “Unrestricted Interrogation of Minors Not Yet Shown to Have Engaged in Culpable Behaviors.” “Given our assumptions, there is a moral obligation for the state to engage in the torture of innocent children.” Download that while it’s hot!

A good April Fool’s joke has to be plausible, and I think this abstract fits the bill. The same arguments that have been advanced to argue that executions might be morally required and that torture is at least permissible, if not required, can be used to require torture for tots. All you need is the right hypothetical.

And yet, I think Larry Solum is right that torture for tots is a proposal that most will view as a joke. Indeed, it’s a prospect that might help test the claim that we torture when, and if, and only if, necessity demands it. In a seminar discussion a few months ago, I suggested that contemporary support for torture might be driven by a presumption that those who are tortured deserve to be treated thus. Some of those present resisted this characterization, claiming that the arguments were based strictly on necessity, so I offered a hypothetical in which the only way to find the location of the ticking bomb is to torture the terrorist’s innocent young child. As I recall, none of my fellow seminar attendees wanted to defend torture under those circumstances.

A previously unreleased torture memo penned by John Yoo became available yesterday. Marty Lederman links to Part 1 and Part 2 and discusses the memo. David Luban addresses torture for tots, and other weaknesses of ticking bomb arguments, in a new paper available here. And in “Professors Strangelove,” available here, I offer some thoughts on torture, national security tough talk, and one of my favorite movies.

UPDATE: My soon-to-be colleague Frank Pasquale points out this Salon piece, which includes a link to a fascinating Youtube clip on the question of torturing children.

Sartorial Exclusion

Alice Ristroph — Wed, 02 Apr 2008 00:28:55 +0000

April is the criminalest month here at Co-op. Thanks to the regular bloggers for the invitation to visit; I’m pleased to join other criminal law professors as a guest. With so many criminal law specialists on board, perhaps no one will mind if I stray from the criminal law and say something about top hats, ascots, and immigration policy.

Sunday’s New York Times featured a story about Sebastian Horsley, a British author and self-proclaimed dandy who was recently denied entrance to the United States on the grounds of moral turpitude—and possibly, for wearing a ten-inch top hat. A customs spokesperson cited Mr. Horsley’s past arrests for drugs and prostitution. But Mr. Horsley’s attire also attracted attention.

To Mr. Horsley, who has in the past entered the country without incident, the recent fracas arose less from his past indulgences than a current one. In short, his very tall top hat.

“It’s a stovepipe,” he said, referring to the subspecies made famous seven score and seven years ago by Abraham Lincoln. “They asked my girlfriend, ‘Why is he wearing that hat?’ And she told them, ‘Because it wouldn’t fit in his suitcase.’ ”

Back home in England, he noted dryly that he had refrained from wearing his usual makeup and nail polish on the flight so as not to attract undue scrutiny — merely a three-piece suit by the Savile Row tailor Richard Anderson, a pink-and-gold-braid tie, a black velvet topcoat and fur-trimmed black leather gloves.

The NYT article wonders who needs to be protected from whom: U.S. citizens from Mr. Horsley, or Mr. Horsley from U.S. citizens who might fail to appreciate his eccentricities?

Though recent discussions of immigration policy have focused on what to do with undocumented persons already on U.S. soil, exclusion at the border is also an issue of interest. Moral turpitude might be the basis on which the U.S. has denied entry to shady characters such as Amy Winehouse and Sebastian Horsley. But intellectual turpitude is also grounds for exclusion. During the Cold War, the United States practiced “ideological exclusion,” denying visas to dangerous persons such as Gabriel Garcia Marquez, Doris Lessing, and that Communist conspirator in pyjamas, Pablo Neruda (scroll down here for my preferred translation of “Lone Gentleman”). At present, the U.S. is denying entrance to Dora Maria Tellez, a Nicaraguan historian and former revolutionary who had been invited to teach at Harvard; Tariq Ramadan, a Muslim scholar and Fellow at Oxford; Adam Habib, a South African professor of political science; and other scholars. The ACLU, which represents PEN American Center and others in legal challenges to some of these exclusions, has an interactive feature that allows the viewer to browse “passports” of famous persons excluded for their political associations or statements. One of my favorites was Canadian Prime Minister Pierre Trudeau, whose arrest in Moscow for throwing a snowball at a Stalin statue didn’t win him enough credit to prevent the U.S from excluding him for Communist sympathies. Or was the problem aesthetic turpitude? After all, Trudeau was a known fashionista, criticized in his own country for wearing a yellow ascot to the House of Commons.

IRAC in Iraq

Alice Ristroph — Fri, 13 Apr 2007 06:57:40 +0000

“How much do you care about IRAC?” This was one of the many questions about exams posed to me recently, a nervous first-year student’s reference to the formulaic structure of legal argument drilled into law students across the nation: identify the Issue, state the Rule, Apply the rule to the facts, and state a Conclusion.

In fact, I don’t care much about IRAC, as I told my student. If it helps a student organize his thoughts, fine, but I certainly won’t discount an exam response because it doesn’t follow this formula. If anything, I often find legal writing a little too formulaic, squeezed into familiar patterns that take all life and personality out of the argument.

IRAC came to mind again today as I read the sad documents on civilian claims for deaths in Iraq, documents recently released to the ACLU pursuant to a Freedom of Information Act request and now available on the ACLU website. The documents are indeed “deeply disturbing,” but it’s hard to pinpoint exactly what is so troubling about them. It’s not just that they make evident “the human costs of war,” as the ACLU puts it, though they do accomplish that. We already knew Iraqi civilians were dying, even if we didn’t and don’t know just how many. And it’s not that the U.S. government is wholly unresponsive to these deaths. Many (not all) of the files authorize cash compensation to surviving family members. Better $4000 for the loss of one’s 9-year-old son than nothing. And the documents often evoke sympathy not only for the family members, but for the service members involved, like this one that describes a distraught and angry soldier crying near the body of a boy that one of her colleagues has just killed. No, the message of these documents is something more complicated than the familiar claim that war is brutal and violent. One especially disturbing aspect of the documents is the way in which these efforts to make war a little less costly to civilians ends up reducing tragic deaths to bureaucratic forms and mechanical legal analysis. Indeed, at least one document contains IRAC analysis to make any legal writing teacher proud:

The issue presented is whether claimant may receive compensation for the death of his father, his mother, his brother, and 32 sheep’s.

… The claimant states that his family was sleeping when the shots were fired that killed his family. …The coalition force may have been justified in shooting at another target where the claimant and his family would be collateral damage to that combat operation. However, the [Rules of Engagement] require units to have positive identification of target before engaging. In this case, reports indicate that over one hundred rounds were fired that impacted around a flock of sheep and his sleeping family. Accordingly, it appears that the shooting, although not “wrongful”, was conducted “negligently”. It is therefore my opinion that there is sufficient evidence to justify compensation under the FCA.

Issue; rule; analysis; conclusion. Compensation payment authorized: $11,200. (It’s unclear how much of that sum is for the dead family and how much for the sheep.) The payment here, as in many of these files, is processed as an invoice for services rendered: “Public Voucher for Purchases and Services Other than Personal.” If these tragedies can be called “services,” in what sense are they not personal?

The New York Times covers the story here. But I encourage interested readers to look at the documents themselves.

Manners on the internet

Alice Ristroph — Mon, 09 Apr 2007 08:03:13 +0000

I’m sure more experienced bloggers will have much to say about this New York Times article about civility (or lack thereof) on blogs. I’m particularly interested in the article’s focus on blog commenters. I’ve often wondered whether the ruder comments on blogs illustrate the truth of the tale of the Ring of Gyges from Plato’s Republic—with the protection of anonymity, our true (and sometimes ugly) colors appear. (I’ve also seen signed comments that show much less civility than people tend to display in face-to-face interactions, so it is not anonymity alone that is shaping internet incivility.)

The Times article describes proposals for self-enforced blogging norms.

For example, anonymous writing might be acceptable in one set; in another, it would be discouraged. Under a third set of guidelines, bloggers would pledge to get a second source for any gossip or breaking news they write about.

Bloggers could then pick a set of principles and post the corresponding badge on their page, to indicate to readers what kind of behavior and dialogue they will engage in and tolerate. The whole system would be voluntary, relying on the community to police itself.

I suppose this is laissez-faire enough to satisfy speech libertarians. But is it a good idea to discourage or disallow rudeness on the internet? If in fact the anonymity of internet speech allows people to display their true colors, do we want to obscure those colors? I recently watched Harvey, the classic old movie in which James Stewart plays Elwood P. Dowd, a very generous and kind but perhaps slightly crazy man with a six-foot rabbit as his companion. A taxi driver warns Dowd’s sister that if she has her brother “cured,” he will become “a perfectly normal human being, and you know what stinkers they are.” Could internet rudeness be a useful and comparatively harmless reminder of what stinkers we are?

The court comes to school: lessons on prosecutorial discretion

Alice Ristroph — Sun, 01 Apr 2007 01:18:52 +0000

Last Wednesday, my criminal law students had to go only a few feet to hear a session of oral arguments before the Utah Supreme Court. Both the Utah Supreme Court and the Tenth Circuit Court of Appeals hold arguments at the S.J. Quinney College of Law every so often. It’s always a great learning opportunity, and Wednesday’s arguments were no exception. A felony drug possession case raised important questions about efforts to limit prosecutorial discretion in charging decisions.

A police officer found a plastic baggie with methamphetamine residue in the defendant’s pocket. Under Utah law, this evidence could have been used to charge possession of drug paraphernalia (a misdemeanor), or possession of a controlled substance (a felony). The state charged the felony offense. At a preliminary hearing, the defendant successfully invoked State v. Shondel, 453 P.2d 343 (1969), a Utah case that provides that “where there is doubt or uncertainty as to which of two punishments is applicable to an offense an accused is entitled to the benefit of the lesser.” Wednesday’s arguments focused on how courts should decide whether there is uncertainty as to the applicable punishment: should courts look only at the statutory language to decide whether two statutes impose different punishments on identical conduct, or should the courts consider how the statutes are applied given the facts and evidence of the particular case? On paper, Utah’s felony drug possession and misdemeanor paraphernalia statutes look different—there are ways to possess drugs that don’t violate the paraphernalia statute, and ways to possess paraphernalia that don’t violate the drug possession statute. But in this case, the only evidence to support either charge was the presence of the baggie with meth residue in the defendant’s pocket. No doubt there will be disagreement about whether prosecutors faced with these choices should charge the offense with the greatest penalty (as John Ashcroft directed federal prosecutors in 2003—see discussion here) or the offense with the least severe penalty, as Shondel seems to require in at least some cases. But as Doug Berman has often noted, in a world in which concerns about sentencing disparities tend to focus on judicial discretion, more efforts to regulate prosecutorial charging decisions might be overdue.

Your money or your life

Alice Ristroph — Wed, 28 Mar 2007 19:42:13 +0000

A flurry of scholarship on Lochner v. New York surrounded its 100-year anniversary in 2005. It’s clear why Lochner gets so much attention. But as a matter of constitutional doctrine, I wonder if we pay insufficient attention to the stealth anti-Lochner, Jacobson v. Massachusetts. The two U.S. Supreme Court opinions were announced just a few months apart, Jacobson in February 1905 and Lochner in April. Both involved claims of individual liberty pitted against public health laws—a mandatory vaccination law in Jacobson, a limitation on work hours (as well as regulations of working conditions) in Lochner. But the outcomes could hardly be more different. Jacobson embraced a broad police power to use coercion to ensure public health; Lochner infamously struck down restrictions on bakers’ working hours as a violation of economic liberty. (Justice Peckham dissented in Jacobson and wrote the Lochner majority opinion; Justice Harlan dissented in Lochner and wrote the Jacobson majority opinion.) Lochner didn’t last, of course, but for a while it seemed that the state could use coercion to protect your life (or health) only if it didn’t mess with your money along the way.

I’ve been thinking about Jacobson and Lochner as I work on an article about the state’s interest in the preservation of life. Jacobson (and maybe, to some degree, the renunciation of Lochner) reflects a widespread assumption that the state has such an interest and may use coercion against citizens’ bodies to further that interest. So we see Jacobson cited in abortion cases to support the state’s interest in the preservation of fetal life, in refusal of medical care or “right to die” cases, and to support indefinite civil commitment (Kansas v. Hendricks) or indefinite detention (Justice Thomas’s dissent in Hamdi v. Rumsfeld) in the name of public safety. In fact, Jacobson has been cited by the Supreme Court more often than Lochner, and the Jacobson references are almost universally favorable while the Lochner references are usually not. A pedagogical question: Should Jacobson get more attention in constitutional law casebooks? And a political / philosophical question: Is it so obvious that the state has an interest in preserving individual lives—especially those of individuals who do not themselves wish to continue living?

This latter inquiry obviously relates to my research on Political Anthropomorphism. One could argue that just as I have an interest in keeping each of my toes intact, the state as a super-person has an interest in keeping each of its constituent members intact. But the analogy doesn’t work perfectly. I’m in trouble if I lose a toe, because new toes are not that easy to come by. (But see The Big Lebowski.) The state, on the other hand, is in trouble if no citizen ever dies, because new lives will continue to come into existence. Given limited space and natural resources, no state can sustain an infinitely large population.

Of course, the notion of the inherent dignity or sanctity of human life is a powerful one. But it seems that most arguments for such dignity—at least the secular arguments—ground the life interest in the individual herself. Does the state have an interest in preserving life that is not derivative of the individual’s own interest in staying alive? If it does, should we expect the state not only to fund health care, but to coerce citizens to get it? Or was the Court right in 1905: coercion to save your life or health is permissible only so long as it does not infringe on economic liberty?

If the Law is a[n] ass, what is the state?

Alice Ristroph — Thu, 22 Mar 2007 20:54:52 +0000

The famous frontispiece to Thomas Hobbes’s Leviathan depicts the head and torso of a long-haired, mustachioed man. Upon close scrutiny, it becomes evident that the man’s torso and arms are composed of tiny individual persons, crowded closely together and each looking toward the head of the composite Leviathan. The image suits Hobbes’s argument well. Hobbes argues that a sovereign should be understood as an artificial person, created by a social contract to represent each individual member of a political community. Of course, Hobbes also argues that the best sovereign is also a natural person: a single human individual who rules as an absolute monarch. But whether political sovereignty rests in a single monarch, in democratic institutions, or in some other form of government, Hobbes urges us to think of the state as a person. The metaphor is simple, accessible, intuitively appealing—and it may be inescapable. Long past the age of absolute monarchs, we still speak of states as entities that intend, and act, and are vulnerable in ways similar to the ways in which individual persons intend, and act, and are vulnerable. This conception of the state shapes American law in significant ways. For example, many questions of constitutional law turn on whether the state acted or what the state intended, and many scholars have noted incoherence in the jurisprudence of state action and state intention.

Maybe we just don’t have convincing ways of thinking and talking about states other than the language of personhood. I’m looking for alternatives, so please let me know if you have suggestions.

In a work in progress called Political Anthropomorphism, I try to escape the metaphor of the state as a person—or at least stand far enough from it to evaluate it critically. I’ll present this paper tomorrow at the annual meeting of the Association for the Study of Law, Culture, and the Humanities, held this year at Georgetown Law Center in Washington, DC. I haven’t attended ASLCH before, but the program certainly looks enticing. Those interested in legal metaphors—the law is an ass or others—may want to attend Metaphors of Power / The Power of Metaphor, where I’ll discuss Political Anthropomorphism and my esteemed co-panelists will discuss the use of metaphors in the legal discourses of marriage, tort liability, and Native American rights to sacred sites or remains. Should be fun.

Bong Hits for What?

Alice Ristroph — Mon, 19 Mar 2007 20:42:08 +0000

Thanks to Dan for the introduction and to the whole Co-op team for hosting me. And thanks for your indulgence over the next few weeks as I share a few thoughts on constitutional law, criminal law, and other topics.

This morning, the Supreme Court heard oral arguments in Morse v. Frederick, the First Amendment case involving a high school student suspended for displaying a banner emblazoned, “Bong Hits 4 Jesus.” Joseph Frederick was an 18-year-old high school senior in January 2002, when he displayed his banner across the street from his high school in Juneau, Alaska, as the Olympic torch procession passed by. The Ninth Circuit found that Frederick’s First Amendment rights were violated even under the less protective standards applied to student speech. The school board (represented by Ken Starr) has denounced the Ninth Circuit’s decision as “unforgivingly libertarian.” As Linda Greenhouse and Marty Lederman have noted, a number of conservative religious organizations have filed briefs in support of Joseph Frederick. The organizations are apparently deeply concerned by the far-reaching authority that the school district has asserted to suppress speech inconsistent with the school’s own understanding of its “basic educational mission,” a mission that may include the inculcation of support for specific public policy positions.

So much for the weighty doctrinal questions that are likely to capture the Court’s attention. One of the things I find most interesting—and amusing—about the case is a slightly different underlying question: what does “Bong Hits 4 Jesus” mean, anyway?

The school district has maintained that the phrase is an endorsement of marijuana use, and the Ninth Circuit agreed. But Frederick has repeatedly denied this interpretation. He initially told his principal that the banner meant, “Better Olympic National Games — Head into Town 4 Jesus.” Somewhat more plausibly, the Washington Post quotes Frederick as explaining, “I wasn’t trying to say anything about religion. I wasn’t trying to say anything about drugs. I was just trying to say something. I wanted to use my right to free speech, and I did it.” Or, as Frederick’s brief to the Supreme Court explains, “I wasn’t trying to spread any idea. I was just trying to assert my right.”

Not trying to spread any idea?! Given the emphasis in First Amendment doctrine on the importance of free exchange of ideas, this defense of Frederick’s speech is unusual. It might make Frederick a less sympathetic student speaker than, say, the high school students who wore black armbands to protest the Vietnam war. If Frederick’s speech is neither an endorsement of drugs nor an attempt to spread any idea at all, is it just a barbaric yawp sounded over the roofs of the world? And does the First Amendment protect barbaric yawps?

Even if the banner is not an endorsement of drug use, it still could be speech with content. Frederick and his principal had a “running feud” over the scope of his constitutional rights even before the Bong Hits banner incident. Having known a few high school students similarly adamant about their First Amendment rights, I find Frederick’s explanations quite believable. He wanted to speak, and more precisely, to resist the authority figure that he perceived to trample on his rights. His message was one of defiance, and his principal seemed to hear that message very clearly. In a way that Nancy Reagan never intended, with his “Bong Hits 4 Jesus” banner Joseph Frederick was probably just saying no.