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.

Unclear on the Concept

The battle never ends.

Here’s a test. Can you distinguish between these two events?

1. A prominent Congressman shuts down the government because the President makes him use the back door of Air Force One.

2. A prominent Congressman decries the President’s handling of the war in part because that President has failed to communicate even with the hawkish elements in the opposing party.

If you think that these are qualitatively different, congratulations. You’re smarter than Mickey Kaus. I would advise sending an e-mail to Jacob Weisberg and asking for prominent blog space on the homepage of Slate.com. God knows, we can only be the better for it.

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.

Which Historic General Are You

Julius Caesar You scored 46 Wisdom, 69 Tactics, 53 Guts, and 50 Ruthlessness!

The Best of LGM

Gentle Reader,

If you would take a look below the ads and Donation Box (clickety click!) on our right sidebar, you’ll notice a new feature, Best of LGM. Thus far, I have only collected posts relating to Our War Against Mickey Kaus, Sunday Battleship Blogging, and the Goeben. We hope to add some more topics in the next couple weeks, including Roe vs. Wade, China, Friday Cat Blogging, and others. Enjoy!

Tomorrow

Good one today.

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.

Sometimes He Just Defies Description

But “wanktastic hackmeister” is a good start:

Guilt-Trip, Incoming! I’m highly skeptical that a movie about gay cowhands, however good, will find a large mainstream audience. I’ll go see it, but I don’t want to go see it. (Why? Sexual orientation really is in the genes. Sorry.) When the film’s national box office fails to live up to its hype and to the record attendance at a few early screenings, prepare to be subjected to a tedious round of guilt-tripping and chin-scratching by Frank Rich and every metropolitan daily entertainment writer who yearns to write about What the Movies Say About America Today. (Wild guess: They say we’re still homophobic!) That will be harder to ignore than the movie. … Maybe if we all go see it, Rich won’t write about it! [He'll write about it-ed Good point.] 9:15 P.M.

Mickey may be right about Brokeback Mountain failing to find a large audience, although it’s really hard to say. It’s the second sentence that really confounds me; how could one’s attitude towards the genetic determinacy of homosexuality possibly affect one’s desire to see Brokeback Mountain, either positively or negatively? Setting aside the fact that discussion about genetics and homosexuality is hardly finished, I’m just very flummoxed as to how your position on that questions affects your inclination to see Brokeback Mountain any more than it affects, say, your preference for mustard over catsup or your desire to see King Kong.

Honestly, I prefer genuine Medveditism to Kaus’ cynical, too clever by half wankery. “Oh, I’ll see it in order to prove that I’m not homophobic, but don’t forget that it really is a plot by liberal Hollywood to demonstrate that we’re all homophobic. By the way, I’m a liberal, so you should take seriously my critiques of all these other dirty liberals.” Will I see Brokeback Mountain? I don’t know, depends on the reviews. I wasn’t really planning on it, but the preview I saw looked pretty solid, and you can do a lot worse than Proulx and McMurtry.

News from the Northern Front

Be sure to read Dave Noon’s update on our progress in the War Against Christmas.

Courage.

The Susan problem

I read the Narnia Chronicles immediately before I first read The Lord of the Rings. (My mother, who is wise in such matters, suggested that if I liked those books, I really should take a look at these). I loved both at the time, and I don’t know if I would have pegged LOTR as a favorite. A few years later, of course, Tolkien’s world was still in my mind, and the books were getting a reread; the world of Narnia, on the other hand, was fading fast and was never picked up again. I was rather surprised, when I first heard about the movie and turned my thoughts to Narnia, how little I remembered anything about the books–I’d actually forgotten all about the character of the White Witch.

One particular detail of the Narnia chronicles has always stuck in my head and my craw. Lewis did more to convince me I couldn’t be a Christian–at least not his kind of Christian. His treatment of Susan, the older daughter, in the final book, struck me as outrageous and egregiously unfair. I stand by that judgement, and as Timothy Burke points out it’s got the unhealthy stench of misogyny to it as well. It’s described in a NYT piece today, which contains a delightful tidbit about a Neil Gaiman story:

Then there’s the unfortunate business with Susan, the second-oldest of the Pevensies, who near the end of the last volume is denied salvation merely because of her fondness for nylons and lipstick – because she has reached puberty, in other words, and has become sexualized. This passage in particular has set off Pullman and other critics (and has caused the fantasy writer Neil Gaiman to publish a kind of payback scenario, in which Susan has grown up to be a distinguished professor, not unlike Lewis, and in which for good measure Aslan performs earth-shaking oral sex on the witch).

I’m not the world’s biggest Gaiman fan, and I’m not sure that sounds like the greatest premise I’ve ever heard for a short story, but I must say I want to read it, if only as an act of solidarity with Susan. The nature of Susan’s exclusion–senseless, trivial, petty and random, punished for her humanity–told me all I needed to know about Lewis’ brand of Christianity. A part of the human experience was arbitrarily repackaged as worldliness and condemned for this invented sin, for no discernable reason other than resentment toward her change and growth. Using the fetishization of childhood to excuse a childish cruelty. Perhaps Lewis did me a favor, making it all so clear to this ten year old. Having never bothered to think much more about this, let alone read any commentary on the series, I wasn’t aware this was a common criticism. Today, I’m happy to learn I’m not alone in my outrage.

As for the movie? I’m not intentionally avoiding it, and I wouldn’t mind seeing it, but there’s about a dozen current and upcoming releases that’ll have priority in the next month or two. Not likely.

See also The Rage Diaries.