Action
As a follow-up to my post about Maye and the blogosphere, Angelica suggests some courses of action. And according to Radley Balko the blog divisions of CBS and the National Journal have picked up the story, which is encouraging.
Author Page for Scott Lemieux
Rhythmic Admirer of the Day
Which reminds me, Klein’s incomprehensible ramblings about how the fact people were becoming less secure in there jobs made it particularly important to make people even less secure by privatizing social security should have been once of the first nominees for the Lubriderm Awards. I regret the omission.
Impotent When Independent
Mark Kleiman makes an important, if depressing, point about the appalling case of Corey Maye: despite the widespread, cross-ideological outrage that the case has elicited throughout the blogosphere, he’s probably not any closer to being spared than he was a few weeks ago. I don’t mean to gainsay the truly terrific work that many bloggers, particularly Radley Balko, have done. But unless some major “mainstream” journalists or political figures pick the case up, I’m not sure what we can do. Dennis the Peasant had related thoughts about the founders of XFL (TM) media and Dan Rather recently:
And that, folks, is the reality of the dismissal of Dan Rather: It wasn’t about The Power of the Blogosphere (TM). Nor was it about liberal bias in the nation’s newsrooms, sloppy reporting by a geriatric hack or a lack of fact checking by an obsessed and deranged producer. It was about corporate profits and corporate politics. It was about how corporate executives go about their business.
I think that’s right, and you can say the same thing about Trent Lott. Again, I think Atrios and Josh Marshall deserved all of the plaudits they got. But, on the other hand, it’s not as if Lott’s ongoing relations with white supremacy only came to light with his retrospective endorsement of the Dixiecrat ticket; anybody who didn’t know about them didn’t want to know. If Bush wanted Lott as majority leader, he’d still be there. What blogs did is to provide the necessary pretext, and they still needed other media outlets to pick up the story.
And that’s what scares me. We’re dealing here with perhaps the most reactionary state in the country; even if the case is picked up by some broadcast journalists, I’m not sure what leverage can be exercised over Barbour. Remember too that we’re in a country in which the President of the United States just nominated someone who believes that the Fourth Amendment presents no restrictions on the ability of policeman to shoot unarmed pretty thievery suspects in the back of the head (and to the enthusiastic plaudits of most of the conservertarian blogosphere.) It’s hard to see the Mississippi electorate rising up in outrage about an African-American shooting a police officer, even in a case this evidently unjust. But I certainly hope that this can get national attention; bloggers need to to whatever they can.
Frivolous
It should be noted that my partial defense of governors who don’t grant clemency in cases like Tookie Williams’ doesn’t seem to apply to Schwarzenegger, who based the decision on a claim that Williams hadn’t really reformed. (Via Julia.) I can respect a governor who says “our state has decided that the death penalty will be used in some cases, and a sane adult who senselessly kills four people in cold blood should receive it even if they’ve changed in prison.” I can’t respect a governor who claims to see into a condemned prisoner’s soul and bases his decisions on that. I’ve you’re going to base your decision on such inherently arbitrary factors, then you really should err on the side of clemency. And I wonder if Williams had been a white accountant if his transformation might have been more convincing to the Predator.
Wolcott wrote yesterday that “No former movie action hero–or Yale cheerleader with enough psychological baggage to sink the African Queen–should be entrusted with the power of life and death over his fellow citizens. These are essentially frivolous, uninformed men playacting blue-suited roles of grave responsibility.” He has a point. I don’t feel as strongly about the death penalty in the abstract as some opponents do. The state is, after all, organized violence, and even the decision to have people with guns protect citizens and coerce people into jail will inevitably result some people being killed without due process, some of them innocent. The state makes all kinds of decisions that results in the loss of life. If you’re talking about the comparative flaws of the American and European legal systems, I think the long sentences for nonviolent drug offenses is a far greater indictment of the American system than maintaining the death penalty. But nothing gets my dudgeon up, and makes my abolitionism more steadfast, than people who don’t really take the death penalty seriously. Most applications of the death penalty in this country make it clear how pointless it really is, how arbitrary, how it accomplishes nothing.
See also the Mahablog and TalkLeft.
Williams, Clemency, and the Respect of Persons
John Cole, an anti-death penalty (“I dislike the death penalty because it is irreversible, it is arbitrary, it is seemingly enforced in a haphazard manner, it seems to be more about race and class than guilt, it does not seem to prevent crime, and because I see no need to have a system that could kill one innocent man when we could keep them all imprisoned and avoid that risk”) conservative, isn’t particularly troubled by the failure of Tookie Williams to be spared the needle. As a liberal death penalty opponent, I am similarly ambivalent, although for slightly different reasons. I think selective clemency is a problematic means of opposing the death penalty.
In my comparative law class this semester, I taught James Whitman’s book Harsh Justice, which tries to explain why criminal justice has developed in such a different manner in the U.S. and Europe. He finds the key difference in Blackstone‘s claim about what he saw as a central accomplishment of English common law:
And it is moreover one of the glories of our English law, that the nature, though not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every subject alike, without respect of persons.
Of course, the phrase “without respect of persons” has a double meaning, one which is arguably a central component of the rule of law and one of which is critical. The irony Whitman notes is that continental systems have “respect of persons” in both respects, treating prisoners with much more dignity, but also sentencing prisoners in a much more individualized and arbitrary fashion than the U.S.. Whitman argues that this is largely the result of Europe’s feudal roots; essentially, Europe has tried to “level up” by giving most prisoners the high status treatment that was once the privilege of the ruling class, while the U.S. hasn’t had the same impulse; while the U.S. has some high status prisons, it’s never been compelled to extend that treatment to all. I don’t agree with all aspects of his argument, and of course the differences are relativistic and not absolute, but I think it’s a useful way of looking at the difference.
To the extent that Whitman is right, I hope there’s not a causal connection, because my own preference would be to marry the Anglo-American style rule of law with the contienental treatment of prisoners and relative disinclination to criminalize non-violent offenses. While of course some discretion is inevitable, and eliminating judicial discretion isn’t often a good idea because it just passes the discretion to less accountable prosecutors, I think that for the most part people who commit similar offenses should get similar punishments, and individualized treatment tends to exacerbate racial and class inequities.
Which brings us to the death penalty. One of the things that marks the attempt to rationalize sentencing in the United States is that executive clemency for condemned prisoners has declined drastically, even as executions have become much less common. Generally, governors in the post-1976 era have used clemency only in rare cases where there’s some doubt about the justice of the sentence. And, frankly, I think that this is right. While I despise George Bush’s unserious attitude about the death penalty, on the narrow issue of whether he should have granted clemency to Karla Faye Tucker, frankly his position is (even if it would have never occurred to him) more defensible than that of conservative death penalty advocates who wanted to pardon her. If we’re going to have the death penalty, then we should be willing to execute attractive Christian white women too. I strongly support clemency in cases, like Cory Maye, where the death penalty is clearly unjust even under a state law that authorizes it. But, honestly, I don’t find Williams’ case, or any case for clemency based on changes a person has made after committing the relevant crime(s), very compelling. These factors are meaningful for parole, but when it comes to the ultimate penalty, it’s just too arbitrary. It’s good that Williams has changed so much in prison, but I can’t justify sparing him while people who committed less brutal crimes will be executed just because they’re less articulate.
None of this is to say, of course, that I’m not strongly opposed to the execution of Tookie Williams, for the reasons that Randy (and Thurgood Marshall) state. But if we’re uncomfortable about executing him, the lesson should be to oppose the death penalty for everyone, rather than arbitrarily saving a few people based on factors that ultimately have little or nothing to do with fundamental justice. If I were a governor, I would grant Williams clemency, but only as part of a blanket refusal to sign off on any execution.
Let’s Define Our Terms, Gentlemen: Are We Talking About Unconstitutional Gerrymandering, Or…
I’m not sure quite what to make of the Supreme Court granting cert appeal in the Texas gerrymandering case. To provide the background, the Supreme Court in 2004 issued Vieth v. Jubelirer, a fractured opinion about political gerrymandering, and ordered a re-hearing of the Texas case based on the opinion. The Court upheld, by a 5-4 margin, a Pennsylvania gerrymander. Only 4 justices, however, joined Scalia’s opinion that constitutional claims based on political gerrymanders were non-justiciable because there was no principled way of determining when a gerrymander went beyond constitutional bounds. While Kennedy agreed that the complaint should be dismissed he filed a concurrence arguing that there may be unusual cases in which gerrymanders were unconstitutional. What’s curious is that the Court will generally grant an appeal only if there’s a conflict with a lower court or there is the possibility of the law changing, and the lower courts upheld the gerrymander (which would be consistent with the outcome in Vieth.) So what’s up? Here are a couple possibilities:
- The optimistic scenario is that the Texas redistricting was so egregious that it’s the case that will shock Kennedy’s conscience enough to rule a gerrymander unconstitutional. (Indeed, if an unusual mid-decade gerrymander done in collaboration with the national Republican leadership is held to be constitutional, then Kennedy might as well just join Scalia and rule that political gerrymander claims are beyond the jurisdiction of the courts; I’m not sure what could possibly qualify as an unconstitutional gerrymander.) Or, perhaps more plausibly, the 4 dissenters in Vieth may have voted to grant cert hoping that Kennedy could be convinced.
- The pessimistic scenario would be that Kennedy has come to agree with Scalia that it’s hopeless, and will finally rule that the claims are non-justiciable (or that the four members of the Vieth plurality believe that they can convince Kennedy.) But it doesn’t seem likely that Kennedy has changed his mind that quickly.
So while I don’t really have it in me to be optimistic, I have to think there’s a non-trivial chance the DeLay gerrymander will be overturned; it’s hard to see why the Court would have taken the case just to uphold it, although it could be that the Vieth dissenters have miscalculated or the Court wants to further clarify its position. The final thing to note is that, while Atrios is almost certainly right that Alito would vote to uphold the gerrymander, since O’Connor joined Scalia’s opinion in Vieth (as did Rehnquist) it wouldn’t affect the current balance of the Court.
…more detailed analysis about the complex bundle of cases SCOTUSblog.
…Althouse suggests that we may be seeing what’s behind door #2.
…ReddHedd discusses the civil rights angle.
A Pox on Bai
As always, I was intensely irritated by Matt Bai’s review of Pierson and Hacker’s fine new book. While such events as the failure of Bush’s social security initiative do indeed raise serious questions about the limitations of the thesis, and there are certainly other things one can quibble with, Bai for the most part takes the “shape of the world: views differ” approach he virtually always does. Rather than rebutting their voluminous data about shifts in the Republican caucus that do not reflect shifts in public opinion, he basically declares that since it doesn’t blame both parties equally it must ipso facto be wrong. I see that the authors themselves have critiqued Bai, which saves me the trouble of detailing the obvious problems with this lazy approach. And some of my disagreements with Bai, such as his argument-from-tradition that the Senate’s gross malapportionment must be preferable to a more majoritarian legislature, are just normative. But there is one additional part of the review which should be pointed out:
For all the hype about the so-called religious right, most rural and exurban voters display little ideological zealotry; rather, they seem inclined toward mild conservatism on economics and foreign policy, along with a reverence for individual liberty – a combination which places them firmly in the historical mainstream of American politics.
On foreign policy, I’ll buy it, but he doesn’t let us in on what the evidence is for the alleged economic conservatism and cultural libertarianism of swing voters; I certainly don’t get it out of Hacker and Pierson’s data. Rather, this seems to be the ur-pundit’s fallacy: the idea that swing voters are conservative economically but socially liberal. This is, of course, as Matt recently noted a better description of media elites like Bai than of swing voters. The latter, from the data I’ve seen tend to prefer Democratic positions on economic issues but–with the exception of criminalizing abortion–tend to prefer Republican positions on cultural issues. (This is particularly ironic from someone who applauds the equal representation of California and Wyoming in the Senate because it will frustrate “urban elites.”) Whatever “reverence for individual liberty” rural voters may express in the abstract, they tend to be (for better or worse) more statist in their economic and cultural positions than both political and media elites.
I’d Suggest Trying Warren Moon Instead
I decided to turn on the 1 o’clock game while I was doing some writing, only to discover that the only game showing was the monumental Jets/Raiders thriller. With my stereo broken, however, the other options are slim so I left it on, and every once in a while glanced over to see the Raiders QB throwing up one feeble wounded duck after another. “Wow, Kerry Collins’ arm is really shot!” thinks I. But a more careful listening revealed that the Raiders QB was ex-UW not-really-a-star Marques Tuiasosopo, something that has to make one of my co-bloggers doubly unhappy. (And nor can Jets fans be happy, as this decision may remove them from the Reggie Bush sweepstakes.) The scary thing is, though, that Tuiasosopo isn’t even the worst recent Huskie QB to start a game this year; the 49ers had enough contempt for their fans to try to pass off Cody Pickett as an NFL quarterback. I mean, I guess it’s always nice to see alumni get nice paydays, but…
Anyway, I think this is a sign that it’s time to go out for brunch.
R. I. P.
I think it’s easy for people of my generation to underrate him because of his generally dreary feature film career, but Richard Pryor was a genius comedian, one of the very greatest. I’ve been listening to his collection of comedy recordings–mostly from his peak in the mid-70s–and it’s just brilliant stuff, a must-own if you’re interested in the genre at all.
The NYT has an extensive obit here.
…nice roundup and tribute from Joe Gandelman. Good stuff from Digby too.
Lawless
Apparently sick of having to have politicial appointees overrule professional lawyers, the Bush administration has decided to just skip the middleman:
The Justice Department has barred staff attorneys from offering recommendations in major Voting Rights Act cases, marking a significant change in the procedures meant to insulate such decisions from politics, congressional aides and current and former employees familiar with the issue said.
Disclosure of the change comes amid growing public criticism of Justice Department decisions to approve Republican-engineered plans in Texas and Georgia that were found to hurt minority voters by career staff attorneys who analyzed the plans. Political appointees overruled staff findings in both cases.
The policy was implemented in the Georgia case, said a Justice employee who, like others interviewed, spoke on condition of anonymity because of fears of retaliation. A staff memo urged rejecting the state’s plan to require photo identification at the polls because it would harm black voters.
But under the new policy, the recommendation was stripped out of that document and was not forwarded to higher officials in the Civil Rights Division, several sources familiar with the incident said.
Fortunately, in this case the courts have provided the function the Bush DOJ won’t perform: the 11th circuit has unanimously sustained the lower court decision striking down the Georgia poll tax that the Bush DOJ (for obvious reasons) refused to evaluate legally. But every year of Bush appointments make having federal judges who will perform such oversight of the executive branch less likely. Having an executive branch that isn’t strongly committed to gutting voting rights starting in 2008 is critical.
