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Today In the Machinery of Death

[ 10 ] October 17, 2014 |

Texas justice, which is national when Republicans appoint the median Supreme Court justice:

Four years before he murdered his in-laws in Texas, Scott Panetti buried some furniture in his yard. The devil, he claimed, was in it. After he was arrested and charged with the killings, Panetti, who has a history of severe mental illness, represented himself at his capital trial wearing a purple cowboy suit. He called himself “Sarge” and subpoenaed Jesus, among other notables. He lost, of course. The jury found him guilty and sentenced him to death.

The case made its way though the appeals courts, eventually reaching the United States Supreme Court, which in 2007 ruled that the state of Texas hadn’t adequately evaluated whether Panetti’s mental condition allowed him to fully understand the nature of his punishment—a constitutional prerequisite for the death penalty. The court stayed the execution and sent the case back for further proceedings.

Seven years later, Panetti’s illness hasn’t gone away, but the Supreme Court has given Texas the green light to kill him. The court’s decision, announced on October 6 without comment, upheld a 5th Circuit Court of Appeals ruling that Panetti was sane enough for execution. The appellate court’s decision, in turn, was based in part on the opinion of a Florida psychiatrist who has deemed at least three Florida death row inmates with long and well-documented histories of mental illness to be sane enough for the needle.

[...]

The details in this story, gleaned from hundreds of pages of court documents and other official filings, indicate that Scott Panetti was no malingerer. He began showing signs of serious mental illness in 1981, back when he was still a teenager. By 1992, he had been diagnosed with paranoid schizophrenia, delusions, auditory hallucinations, and manic depression, and had been hospitalized 14 times.

Well, in a state where you can be executed even when the state has no actual evidence that you’ve committed any crime at all, not executing actually killers because they’re severely mentally ill is probably going to be off the table.

The Eternal Mystery of Republican Health Care Policy

[ 57 ] October 17, 2014 |

One summary of Republican health care principles:

That’s the fundamental belief that motivates most, if not all, the conservative opposition: Health care should be a privilege rather than a right. If you can’t afford health insurance on your own, that is not the government’s problem.

I happen to find this belief morally bizarre. People who cannot afford their own insurance either don’t earn much money, or have health risks, or family members with health risks, too expensive to bear.

[...]

Indeed, very few Republicans have the confidence to make the case openly that the inability of some people to afford the cost of their own medical care is their own problem. But that is the belief that sets them apart from major conservative parties across the world, and it is the belief that explains why they have opposed national health insurance every time Democrats have held power, and why they have neglected to create national health insurance every time they have.

Hmm. Chait’s unorthodox view seems to derive the content of Republican health care policy based on such strange metrics as “what Republicans do when they control the legislative and executive branches of state and federal governments” and “what conservative intellectuals favor” and “what conservative politicians favor when not creating transparent decoys during periods when they need to pretend to have an alternative.” Odd. If you use more relevant measures like “what laws single Republican governors (mostly) sign when massive veto-proof majorities of New England Democrats put them on their desk” and “what New England Republican Senators who also favor national handgun bans propose when Republicans are in opposition,” you’ll see that the Affordable Care Act represents long-standing Republican policy preferences, even if it took that dastardly neoliberal sellout Obama to use the third term of the Bush administration to pass it.

Another Winner From Late-Period Posner

[ 46 ] October 16, 2014 |

Judge Posner’s Voter ID opinion — which, alas, came in the form of a dissent from the denial of an en banc hearing — is indeed a beauty. My favorite graf:

Voter-impersonation fraud may be a subset of “Misinformation.” If so, it is by all accounts a tiny subset, a tiny problem, and a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government. Those of us who live in Illinois are familiar with a variety of voting frauds, and no one would deny the propriety of the law’s trying to stamp out such frauds. The one form of voter fraud known to be too rare to justify limiting voters’ ability to vote by requiring them to present a photo ID at the polling place is in-person voter impersonation.

Or maybe it’s this one:

As there is no evidence that voter impersonation fraud is a problem, how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials? If the Supreme Court once thought that requiring photo identification increases public confidence in elections, and experience and academic study since shows that the Court was mistaken, do we do a favor to the Court-do we increase public confidence in elections-by making the mistake a premise of our decision? Pressed to its logical extreme the panel’s interpretation of and deference to legislative facts would require upholding a photo ID voter law even if it were uncontested that the law eliminated no fraud but did depress turnout significantly.

You also have to love the appendix titled “Scrounging For Your Birth Certificate in Wisconsin” (a direct shot at Easterbrook’s embarrassing opinion.) The dissent also does a good job distinguishing the case from Crawford, although Posner and the Supreme Court were wrong then too.

I really hope that Ponsner ends up hearing a case brought by the ACA troofers; that could possibly result in the most entertaining opinion in judicial history.

Horrible Legislation In American History

[ 31 ] October 16, 2014 |

A useful reminder:

The Fugitive Slave Act took this criminalization further, essentially allowing white “man-catchers” to declare black people escaped slaves—again criminals—and remand them to custody. And there was great incentive to do so, as the individual enforcers of the act were given $5 if it were determined “that a slavemaster was not entitled to an alleged fugitive slave” but $10 if it were determined the slavemaster did have a right to his “property.” A U.S. marshal refusing to participate could himself be criminalized and fined $1,000. A marshal who allowed an enslaved person to escape “would be liable to an owner for the full value.”

And in addition to the odious content, as I’ve said before nothing better reveals the farcical nature of the assertion that the Confederacy was about “states’ rights.” To anyone who believed in a “strict construction” of federal powers, the placement of the Fugitive Slave Clause in Article IV rather than I and the lack of an explicit grant of federal authority would render the statute unconstitutional. But…over to you, Justice Harlan:

In view of the circumstances under which the recent amendments were incorporated into the Constitution, and especially in view of the peculiar character of the new ights they created and secured, it ought not to be presumed that the general government has abdicated its authority, by national legislation, direct and primary in its character, to guard and protect privileges and immunities secured by that instrument. Such an interpretation of the Constitution ought not to be accepted if it be possible to avoid it. Its acceptance would lead to this anomalous result: that, whereas, prior to the amendments, Congress, with the sanction of this court, passed the most stringent laws — operating directly and primarily upon States and their officers and agents, as well as upon individuals — in vindication of slavery and the right of the master, it may not now, by legislation of a like primary and direct character, guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments. With all respect for the opinion of others, I insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exercises of an implied power to protect and enforce a right recognized by the Constitution, why shall the hands of Congress be tied so that — under an express power, by appropriate legislation, to enforce a constitutional provision granting citizenship — it may not, by means of direct legislation, bring the whole power of this nation to bear upon States and their officers and upon such individuals and corporations exercising public functions as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land?

Of course, by 1883, not only the reconstituted slave power but moderate Republicans thought that federal power to protect civil rights (as opposed to the slaveholders) went too far.

Vote Suppression FAIL

[ 35 ] October 16, 2014 |

Excellent news:

The Arkansas Supreme Court struck down the state’s voter identification law on Wednesday, saying that it would set a new requirement for voting beyond those listed in the state’s Constitution.

[...]

The Arkansas ruling found that the law went beyond the four qualifications for voting in the state Constitution. The Constitution says that a voter must be a United States citizen, a resident of the state, at least 18 years old and lawfully registered to vote in the election. “These four qualifications set forth in our state’s Constitution simply do not include any proof-of-identity requirement,” the ruling said.

Because the ruling is on state constitutional grounds, pro-vote suppression federal courts will almost certainly not be able to overrule it. There are legitimate concerns about making changes close to an election, but that concern is much greater when requirements are added than when they’re taken away; nobody will be prevented from voting because the ID requirement is struck down, and there shouldn’t be any logistical problems in enforcing it.

Supreme Court Temporarily Prevents Forced Texas Clinic Closures

[ 26 ] October 15, 2014 |

Interesting:

The Supreme Court has temporarily reversed the devastating impact of Texas’s restrictive abortion law, blocking a law that earlier this month had closed all but eight legal abortion clinics in the second-largest state. The immediate result, a rare victory for abortion rights, is the expected reopening of 13 clinics that closed on October 2.

Three members of the court – Antonin Scalia, Clarence Thomas and Samuel Alito – said they would have denied the clinics’ appeal entirely. Either or both Chief Justice John Roberts and Justice Anthony Kennedy appear to have signed on with the court’s liberals; both voted to let an earlier portion of the law to go into effect, which also closed more than a dozen clinics.

It’s important simply because for the time being it preserves meaningful access for many Texas women.  But it provides at least the slightest glimmer of hope that there are limits to how much content Kennedy is willing to let get drained out of Casey. 

Liptak has more.

Thoughts On Affirmative Consent and the Campus

[ 181 ] October 15, 2014 |

I don’t have firm views on the new California standards for consent on college campuses. We should see how they work and if they’re effective. But, particularly in light of Jon Chait’s essay, I did want to emphasize a few points about the affirmative consent standard.

  • Affirmative consent does not mean only verbal consent.  Chait doesn’t make this mistake, but it does seem to come up in some critiques of affirmative consent — Freddie de Boer’s, for example. I do agree that a standard of consent that required verbal consent for every sex act would be silly and unworkable.  But the California standard does not in fact require this.  I don’t know about the proposed Columbia standard, but the New York piece Freddie cites simply asserts that consent must be verbal without backing this up with an explicit evidence from the text.  Consent does not necessarily have to be verbal to be unambiguous.  For this reason, I don’t agree with Ezra Klein that the California law is an “extreme” law perhaps justified by an extreme problem, and I think the alleged ambiguity of consent is vastly overstated.  Jessica Valenti is excellent on this point.
  • An affirmative consent standard does not logically require any particular form of due process.  There are some real potential due process problems when campuses try to enforce sexual assault and misconduct guidelines (although, for reasons I’ll get to in a second, I think they are sometimes overstated.)  I agree, for example, if an appeals process is warranted the appeal cannot be heard by the person who issued the original judgment.  But it’s important to keep these questions distinct.  A traditional consent standard can be enforced with inadequate due process; an affirmative standard can be enforced while granting appropriate due process rights.
  • What process is due is contingent on the nature of the penalty. It’s true, as far as it goes, that the crisis of sexual assault on campus does not justify an illberal abandonment of due process rights.  But it’s also important to remember that what process is due varies considerably depending on the potential consequences. (You have a right to be provided with counsel at a criminal trial, but not at traffic court.)  This is particularly important in this context, because the penalties that universities can mete out are generally pretty limited.  The process that is due to someone facing a 15-year prison term is not the same as the process due to someone facing a one-year suspension is not the same as the process due to someone who is asked to leave a university dormitory.  A regulation that can result in severe sanctions should be narrowly drawn even at this risk of producing significant false negatives, but a student handbook can require more of its students in their sexual practices than the absolute plausible legal minimum.  Students facing severe sanctions should have the opportunity to meaningfully contest charges against them, but nothing in the California law prevents this.

It’s this last point — the relatively small stakes involved here — that I think make the California law worth trying. It may be possible, although I very much doubt it for the reasons previously discussed, that the standard will prove unworkable and produce too many false positives.  It may be — and this is somewhat more likely — that the change in standards will prove ineffectual, not providing any additional protection against sexual assault in practice.  It will ultimately be an empirical question.  But the idea that even in principle “don’t think like a sexual predator” is an excessive burden on students is entirely implausible to me, and I won’t assume that the new standards will fail in either direction ex ante.

Consent Is Not A Particularly Mysterious Concept

[ 123 ] October 15, 2014 |

Sophia Katz’s essay recounting her sexual assault by Stephen Tully Dierks got a lot of attention because of its implications for the Brooklyn literary scene, but it’s an excellent piece of writing on its own terms, showing the various power dynamics Dierks exploited very effectively.

Remarkably, there are people who seem to think there’s some ambiguity about whether Katz was sexually assaulted, which leads us to an equally superb piece of writing by Mallory Ortberg:

I cannot and will not, as Ellen does, pick apart Katz’ motives for going to New York City or staying with Dierks or not “taking responsibility for herself”; I will assume that as the person best qualified to speak on what happened before and during her stay with Dierks, Katz did not board a plane to New York City because she believed she was going to have to continually fight off sexual advances from her host.

If I had a guest coming in from out of town, and I had romantic or sexual designs on them, and I asked if they would be willing to share my bed and their response was “I’ll bring a sleeping bag; I’d like to sleep on the floor,” I would be appropriately chastened (and privately a bit mortified). The message would be abundantly clear. The No is obvious. The No is there.

I would have to be looking for a way to cheat my guest of their clearly stated wishes, were I to abruptly start undressing and caressing them the moment I got them alone. I would have to be looking for a way to wear down or tear down their No into a Fine, I Won’t Stop You.

I do not believe that most women — that most victims of sexual assault — freeze or shut down when faced with the prospect of coercive sex because they don’t really care what happens next, or because they’re excited to push through the moment for the sheer joy of accusing the aggressor of rape after the fact. I believe that these women, these people, have a finely tuned sense for their safety, that when a woman reports having “a feeling that it would turn into an ordeal if I rejected him,” she is not crazy and she knows what she is talking about.

[...]

I should not have had to do it either time. The first time I said No, the first time I turned my head away, the first time I crossed my arms over my chest and walked away, the first time I said “What are you doing?”, the first time I displayed a clear and obvious distaste for what was being done to me rather than with me should have been enough. That expectation — that the person saying No should be prepared at any moment to fight someone else off is an undue burden. Pretending that active consent is ambiguous and confusing and difficult to obtain is a pernicious lie that has no basis in reality. It is abundantly clear when someone is eager and ready to sleep with you.

I said No. Sophia Katz said No. Saying No was easy, making the man who wanted to hear Yes listen to me when I said No was the challenge. A man who wants to hear a Yes will find a way to drag it out of you.

Saying No was easy. Getting Shaun and Adam to listen to my No took everything I had.

It should not take everything you have to turn down someone’s offer for sex.

A woman who says “No thanks, I’ll sleep on the floor”; a woman who freezes up and tenses at your touch; a woman who says “I really don’t want to” and “We really shouldn’t” and “We can’t” and “Please at least wear a condom” is not saying yes to you, and if you would like to pretend that that is unclear, you are a liar, you are being disingenuous, you are lying and you know it.

Some of the discourse surrounding affirmative consent standards seem to assume that determining consent is some deep mystery wrapped in several enigmas. The basis for believing this has always been unclear to me. It is generally not difficult to tell when someone is consenting to have sex with you. If you’re unsure, you can ask him or her! If you have any doubt, stop! It’s not terribly complicated. There may be some issues with how to write this into a legal standard at the margin, which I’ll deal with in a subsequent post, but I don’t see any problem in principle with an affirmative consent standard.

Wage Theft and the Supreme Court

[ 37 ] October 15, 2014 |

This amicus brief is not one of the Obama administration’s better moments.

Abortion Green Lanternism

[ 9 ] October 15, 2014 |

Atrios is making sense:

What was especially maddening about Saletan-esque arguments over the years, aside from their clear wrongness, was that he seemed to truly believe that if only pro-choice people would admit it was all so icky and horrible then anti-abortion people would just surrender and go home. It was the position that only a High Priest Of Punditry could take, that the discourse was more important than the policy.

There were a lot of pathologies in the general pundit discourse about abortion in the preceding decade (which, thankfully, seem to be a little less common now.)  But one of the strangest is the idea that there was some rhetorical strategy that could end the underlying conflict. And it’s particularly odd in the context of abortion, where public opinion has been remarkably stable since the issue became politically salient in the mid-60s, all the clever rhetorical strategies of both sides aside.   Framing and messaging are overrated in general, and abortion is a particularly strong case in point even though it’s an issue where people seem to be particularly obsessed with it.

Frivolous Legal Threat of the Day

[ 49 ] October 15, 2014 |

Blake Lively.

Tuesday Links

[ 33 ] October 14, 2014 |

Anti-density restrictions are an incumbent protection racket that work well for the affluent and not so much for anyone else.

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