“Office and retail work might seem like an unpromising growth area for police and prosecutors, but criminal law has found its way into the white-collar workplace, too. Just ask Georgia Thompson, a Wisconsin state employee targeted by a federal prosecutor for the “crime” of incorrectly processing a travel agency’s bid for state business. She spent four months in a federal prison before being sprung by a federal court. Or Judy Wilkinson, hauled away in handcuffs by an undercover cop for serving mimosas without a license to the customers in her bridal shop. Or George Norris, sentenced to 17 months in prison for selling orchids without the proper paperwork to an undercover federal agent.”—Chase Madar
“Some conservatives say, ah, but he was a communist. Actually Mandela was raised in a Methodist school, was a devout Christian, turned to communism in desperation only after South Africa was taken over by an extraordinarily racist government determined to eliminate all rights for blacks. I would ask of his critics: where were some of these conservatives as allies against tyranny? Where were the masses of conservatives opposing Apartheid? In a desperate struggle against an overpowering government, you accept the allies you have just as Washington was grateful for a French monarchy helping him defeat the British.”—
LTMC: There’s a brief but worthwhile exchange in the comments section on this article that’s worth bringing to the surface:
Wes341: But you’ve got to admit that Newt making sense is bound to cause some cognitive dissonance.
Ta-Nehisi Coates: No. It shouldn’t. That right there is the fight. It’s the exact reason why people think no racists actually exist in the world, and bigots live under bridges. If you begin from the premise that all humans are complicated then there really is no dissonance to be had. Dissonance is what we are.
As admitted by the U.S. government, recently declassified documents show that in the 1960′s, the American Joint Chiefs of Staff signed off on a plan to blow up AMERICAN airplanes (using an elaborate plan involving the switching of airplanes), and also to commit terrorist acts on American soil, and then to blame it on the Cubans in order to justify an invasion of Cuba. See the following ABC news report; the official documents; and watch this interview with the former Washington Investigative Producer for ABC’s World News Tonight with Peter Jennings.
LTMC: And people wonder why false flag conspiracy theories are on the rise.
As Justice Brandeis said in his dissent to Olmstead v. United States, “Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” When the government admits to trying to fool the public into war, it’s no surprise that some people will be suspicious the next time a public act of violence occurs that seems to justify military intervention or a crackdown on civil liberties. It plays upon an old American tradition that Justice Brennan discussed in 1987:
[A]s adamant as my country has been about civil liberties during peacetime, it has a long history of failing to preserve civil liberties when it perceived its national security threatened. This series of failures is particularly frustrating in that it appears to result not from informed and rational decisions that protecting civil liberties would expose the United States to unacceptable security risks, but rather from the episodic nature of our security crises. After each perceived security crises ended, the United States has remorsefully realized that the abrogation of civil liberties was unnecessary. but it has proven unable to prevent itself from repeating the error when the next crisis came along.
“I am a retired police officer and I think it’s the police attitude has changed, with the God complex and Us v. Them (The Public) attitude. They treat the public as the enemy. I have been stopped and had negative interactions with police since my retirement. I am not an Anti-Police Extremist. I want to be treated like a person [and] a human. [For] police officers that read [this], think about it this way: the next time you are in someone’s face screaming at them and treating them like turds, imagine how you would feel if a cop like you were doing that to you wife or child or mother or father.”—James Dutton, in the comments to this post from The Free Thought Project.
“Just imagine if Cape Town were London. Imagine seeing two million white people living in shacks and mud huts along the M25 as you make your way into the city, where most of the biggest houses and biggest jobs are occupied by a small, affluent to wealthy group of black people. There are no words for the resentment that would still simmer there.”—Musa Okwanga, discussing the race problems that still exist in South Africa.
“What is morally obvious in retrospect is not morally obvious at the time — at least, not to everyone. There are people right now who will be caught on the wrong side of history, and something we are debating at this moment.”—Chris Hayes
“I was called a terrorist yesterday, but when I came out of jail, many people embraced me, including my enemies, and that is what I normally tell other people who say those who are struggling for liberation in their country are terrorists.”—Nelson Mandela (via azspot)
If we want to remain faithful to Mandela’s legacy, we should thus forget about celebratory crocodile tears and focus on the unfulfilled promises his leadership gave rise to. We can safely surmise that, on account of his doubtless moral and political greatness, he was at the end of his life also a bitter, old man, well aware how his very political triumph and his elevation into a universal hero was the mask of a bitter defeat. His universal glory is also a sign that he really didn’t disturb the global order of power.
“That feeling of being on the spot? Of being defined by the color of your skin? Of being blamed for things that other people of your color do, even if you have not done them yourself? That’s not a classroom for people of color. That’s life. There’s no walking out of class. There’s no transferring to a different professor. There is only more of the same, with the hope that dialogue, education, and activism will pull the collective ostrich head from the ground, bit by bit, until that structural racism that you don’t like talking about is eradicated.”—RHPolitics: Open Letter to the Three White Students Who Filed a Discrimination Complaint Against Their Black Teacher | Olivia Cole
“[The biggest barrier to my medical practice is] The lack of a single-payer system. We waste enormous amounts of time and energy dealing with insurance companies, whose major goal is figuring out how not to cover patients.”—Steven Nissen, M.D.
There are so many tributes to Nelsons Mandela that have been and will be written in the coming days that it hardly seems fitting to pollute the airwaves with another one. But I would like to bring up a point that Vijay Prashad mentioned this morning:
Everybody now is sad that Madiba is dead. Not a dry eye can be found. But many of these same people opposed freedom in South Africa to the very end. Many of these same people pilloried the struggles around the world in solidarity with Mandela’s ANC. And many of these people now ridicule the kind of views that Mandela held to the very end. When Mandela opposed the Iraq war (“All Bush wants is Iraqi oil”), the Western press lambasted him — the same press that is now aggrieved at his passage. All the obituaries detail what he did in his life, but none go into his political views.
I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.
The same is true of King’s opposition to the Vietnam war. There are undoubtedly people alive today who believe in the most basic facet of King’s message of racial equality (i.e. judging someone by their character rather than their skin color), while thinking the War in Vietnam was a fine idea—a war that King was deeply opposed to (see below).
King’s Letter From Birmingham Jail was a condemnation of every White person and institution that, claiming to support the struggle of Black Americans in the 1960’s, sat idly by and did nothing; or worse yet, tried to convince King and his supporters that “now was not the time.” He lambasted middle class Whites who sat comfortably in their homes while Black children were attacked by police dogs and murdered while sitting in church. Meanwhile, King’s position on the Vietnam war was equally vehement:
As I have walked among the desperate, rejected and angry young men I have told them that Molotov cocktails and rifles would not solve their problems. I have tried to offer them my deepest compassion while maintaining my conviction that social change comes most meaningfully through nonviolent action. But they asked — and rightly so — what about Vietnam? They asked if our own nation wasn’t using massive doses of violence to solve its problems, to bring about the changes it wanted. Their questions hit home, and I knew that I could never again raise my voice against the violence of the oppressed in the ghettos without having first spoken clearly to the greatest purveyor of violence in the world today — my own government.
This effort to sanitize iconic historical figures to make them more accessible is not limited to MLK. Gandhi, whose politics were somewhat different from King’s, has nonetheless also been subject to some historical whitewashing for accessibility’s sake. Gandhi’s program of non-violent resistance to a foreign oppressor makes sense to everyone (That’s what the American colonies did, after all!), so that’s what gets taught in schools. Yet Gandhi’s politics included things like this:
Gandhian economics do not draw a distinction between economics and ethics. Economics that hurts the moral well-being of an individual or a nation is immoral, and therefore sinful. The value of an industry should be gauged less by the dividends it pays to shareholders than by its effect on the bodies, soul and spirits of the people employed in it. In essence, supreme consideration is to be given to man rather than to money.
Of course, Gandhi also opposed Communist notions of “Class Warfare” because he felt it leads to unnecessary violence that would be suffered disproportionately by the poor. But it doesn’t change the fact that his politics were far more nuanced (and often radical) than the history books give him credit for.
The same is true of Nelson Mandela. He will be widely hailed as a hero and moral leader of humanity, which is appropriate. But in America, I suspect that many of the same people praising Mandela will conveniently ignore elements of his politics that they would find offensive in any other arena.
Apartheid is a crime against humanity. Israel has deprived millions of Palestinians of their liberty and property. It has perpetuated a system of gross racial discrimination and inequality. It has systematically incarcerated and tortured thousands of Palestinians, contrary to the rules of international law. It has, in particular, waged a war against a civilian population, in particular children.
[America’s] unqualified support of the Shah of Iran led directly to the Islamic revolution of 1979. Then the United States chose to arm and finance the [Islamic] mujahedin in Afghanistan instead of supporting and encouraging the moderate wing of the government of Afghanistan. That is what led to the Taliban in Afghanistan. But the most catastrophic action of the United States was to sabotage the decision that was painstakingly stitched together by the United Nations regarding the withdrawal of the Soviet Union from Afghanistan.
If you look at those matters, you will come to the conclusion that the attitude of the United States of America is a threat to world peace. Because what [America] is saying is that if you are afraid of a veto in the Security Council, you can go outside and take action and violate the sovereignty of other countries. That is the message they are sending to the world.
And so as countless more tributes to Nelson Mandela are penned, most of them will ignore his politics, and focus on the more accessible aspects of his life. They will focus, mostly on two things: (1) his suffering at the hands of a racist government, and (2) his message of forgiveness and reconciliation with his former oppressors. Both of these things are powerful and relevant aspects of Mandela’s life, and are worth remembering.
But it is wrong that, in remembering these things, the other pieces of Mandela’s politics are washed over and ignored. Mandela’s beliefs were not formed in a vacuum. To truly appreciate and understand Mandela’s life, you have to be wiling to connect the dots. You can’t praise his message of reconciliation with his former racist oppressors while refusing to recognize that he also saw economic inequality as a threat to human dignity—not least because it is often linked to racism, even in (or perhaps especially in) Western democracies. The two were very much connected in Mandela’s mind.
So as friends and family continue to announce tributes to Mandela’s legacy, don’t be afraid to tell them about Mandela’s lesser-known political stances. Ignorance about Mandela’s politics only encourages people to continue to participate in the mass cognitive dissonance that we see whenever an iconic figure dies. Their more controversial political stances are ignored, while their more palatable stances are remembered. Yet we can’t truly honor and understand iconic people without reckoning with the full range of their political views. The failure to do so is simply a form of mass self-delusion. It’s bad for public discourse—and frankly, bad for public policy—since Mandela’s legacy will inevitably be invoked by people who never took the time to understand the political stances that Mandela actually held.
“A part of the great thing of living in [Iceland] is that you can enter parliament and the only thing they ask you to do is to turn off your cellphone, so you don’t disturb the parliamentarians while they’re talking. We do not have armed guards following our prime minister or president. That’s a part of the great thing of living in a peaceful society. We do not want to change that. ”—Thora Arnorsdottir (via The People’s Record)
In the Fall 2012 issue of the Washburn Law Journal, Monroe H. Freedman and Charles E. MacLean, academics both, had a battle royal on the topic of prosecutorial misconduct.
In Freedman’s article, he makes a vigorous case that Prosecutorial misconduct is both widespread and unaddressed. He drops this withering salvo on page 2:
One of the two greatest scandals in lawyers’ ethics is the general failure of disciplinary authorities and courts to take appropriate remedial action against prosecutors who violate both the constitutional rights of criminal defendants and the prosecutors’ own ethical obligations. For example, a computerized review has shown that there have been only 100 reported cases of professional discipline of federal and state prosecutors in the previous century—an average of only one disciplinary case per year. Moreover, these cases are not limited to violations of the rights of criminal defendants but include cases of bribery, extortion, conversion, and embezzlement of government funds. As one federal judge observed, “When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.” And Professor Bennett Gershman, the leading authority on prosecutorial misconduct, has concluded that discipline of prosecutors is “so rare as to make its use virtually a nullity.
Ouch. MacLean isn’t having it though. He finds fault with Freedman’s anecdotes, such as United States v. Aguilar, wherein the prosecutors:
engaged in a series of improper and/or unethical behavior, including (1) falsifying entries in search warrants and, on at least six warrant applications, conducting searches of premises not enumerated in issued warrants, (2) proffering false and misleading grand jury testimony by a named FBI special agent, (3) failing to produce and withholding grand jury testimony and related discoverable evidence, (4) wrongfully obtaining certain privileged marital communications, and (5) exceeding the court’s relevance rulings by eliciting irrelevant testimony.
I will return to the bolded text in a moment. While Freedman cites the court’s mere dismissal of the case as evidence of reluctance to hold prosecutors accountable, MacLean dismisses Freedman’s concerns:
That is a woeful record, to be sure. However, the trial court in Aguilar acted wisely and decisively when it suppressed the tainted evidence during the trial and eventually dismissed the indictment without leave to re-file. As the court noted in conclusion, the government team “should not be permitted to escape the consequences of [its mis-]conduct. By not allowing [the government] to benefit from a ‘do-over,’ the Court hopes that this ruling will have a valuable prophylactic effect … . For the foregoing reasons, the convictions … are vacated and the … Indictment is dismissed.”
Well, sure the court acted wisely. It was the right decision. There was blatant misrepresentations and misconduct by the prosecutor, including six instances of purgery on warrant applications. This is the sort of stuff that gets attorneys in private practice disbarred. But apparently, simply dismissing a case is enough for MacLean:
Aguilar does not stand for the proposition that judges are reluctant to hold prosecutors to task for misconduct. On the contrary, it stands for quite the opposite. There is no denying that the court’s findings disclose a consistent series of various types of misconduct by the prosecutors and other government agents. Some prosecutors push the envelope too far; sanctions alone will not put an end to that. But good prosecutors learn from other prosecutors’ mistakes, as well as from court decisions, whether the courts suppress evidence, dismiss the charge or case, enforce the double jeopardy bar, or impose sanctions against the prosecutor’s attorney license.
There are two points to make here. First, the idea that judges will impose sanctions against prosecutors’ attorney licenses is not supported by any evidence to date. The 2010 Ridolfi-Possley study, for example, showed that less than 1% of reported cases of misconduct resulted in professional discipline for the prosecutors in California. As Freedman suggests in his article, virtually every scholar who studies the topic inevitably discovers a shocking dearth of instances of ethical discipline for wayward prosecutors. It is rare enough to be negligible.
Second, MacLean’s discussion of “good prosecutors” learning from bad prosecutors’ mistakes is irrelevant. Good prosecutors are not the ones we are concerned about. Good prosecutors care about the Constitutional rights of Defendants. Good prosecutors attend CLE’s and re-read Brady to make sure they are complying with their legal and ethical obligations. Good prosecutors care less about getting “scumbags off the street,” and more about making sure they do an honest job, disclose evidence to defendants, and uphold the Constitution.
Good prosecutors already do all of this—even when that means they have to let the bad guy go free, because they know that Constitutional rights are bigger than any one case. They know that making exceptions for bad people creates case law that inevitably reaches “not-so-bad” people. As Thomas Paine wrote nearly three centuries ago:
An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.
So the issue at hand is not about making good prosecutors better. It is about what happens when malicious or incompetent prosecutors make repeated or big mistakes. And Aguilar is a prime example of what doesn’t happen to prosecutors when they commit blatant ethical and even criminal misconduct.
I want to drive home how absurd MacLean’s argument is here. The prosecutors in Aguilar committed perjury on six warrant applications. Perjury is generally considered a felony offense in most jurisdictions. That is six felony-level offenses. Perjury also involves making a knowing misrepresentation to the Court, in addition to engaging in deceitful conduct. This is the kind of stuff that State Bars regularly deny applicants admission for. But a prosecutor does it, and a mere dismissal is viewed as appropriate medicine?
This is a good example of why prosecutors’ offices are institutional incompetent to be judges of their own ethical obligations. Just as prosecutors regularly interpret Brady to mean that they don’t have to disclose relevant evidence to the Defendant’s lawyer, they also convince themselves that a light slap on the wrist (e.g. getting one of your cases dismissed) is an appropriate sanction for committing serial perjury. How any honest prosecutor could make MacLean’s argument with a straight face is beyond me. Particularly when the misconduct at hand is criminal in nature.
Obviously there are plenty of honest prosecutors. Indeed, I’m sure that the majority of prosecutors are honest and genuinely want to uphold the law and respect defendants’ constitutional rights. But when it comes to holding bad prosecutors accountable, the system does not work, and it has not worked for some time. Aguilar demonstrates, rather than undermines that proposition.
With all that being said, it’s probably true that professor Freedman over-used anecdotal evidence to make his point. But MacLean’s attempt to undermine Freedmans’ Aguilar anecdote only demonstrates the point that Freedman was trying to make in the first place: prosecutors are rarely punished in accordance with the wrongs—both legal and ethical—they commit. When a prosecutor can commit six instances of perjury by falsifying statements on a warrant application and escape without even a mark on their professional license, something is wrong. And it’s not with Freedman’s anecdotes.
“One of the two greatest scandals in lawyers’ ethics is the general failure of disciplinary authorities and courts to take appropriate remedial action against prosecutors who violate
both the constitutional rights of criminal defendants and the prosecutors’ own ethical obligations. For example, a computerized review has shown that there have been only 100 reported cases of professional discipline of federal and state prosecutors in the previous century—an average of only one disciplinary case per year. Moreover, these cases are not limited to violations of the rights of criminal defendants but include cases of bribery, extortion, conversion, and embezzlement of government funds. As one federal judge observed, “When faced with motions that allege governmental misconduct, most district judges are reluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.” And Professor Bennett Gershman, the leading authority on prosecutorial misconduct, has concluded that discipline of prosecutors is “so rare as to make its use virtually a nullity.”—Monroe H. Freedman, The Use of Unethical and Unconstitutional Practices and Policies by Prosecutors’ Offices, 52 Wash. L. J. 1, 2 (2012).
The National Security Agency is gathering nearly 5 billion records a day on the whereabouts of cellphones around the world, according to top-secret documents and interviews with U.S. intelligence officials, enabling the agency to track the movements of individuals — and map their relationships — in ways that would have been previously unimaginable.
The records feed a vast database that stores information about the locations of at least hundreds of millions of devices, according to the officials and the documents, which were provided by former NSA contractor Edward Snowden.
LTMC: "It’s not paranoia if they’re actually watching you."
There were pieces of my family all over the road. I picked up those pieces from the road and from the truck and wrapped them in a sheet to bury them.
Do the American people want to spend their money this way, on drones that kill our women and children?
Miya Jan, an Afghan man who recounts the events after a drone strike pummeled his village and killed his brother, along with his sister-in-law and 18 month old nephew.
American reports claimed 11 people died that day, the overwhelming majority being Taliban militants, while the inhabitants of the village refute saying 14 people died and they were innocent civilians.
Also more from the article, a 19 year old man named Abdul Ghafar, who lost his mother, brother, sister-in-law and nephew in drone strikes, which fly over his home several times a day states:
“The Americans say they are here to protect us. No — they’re here to kill us and terrorize our women and children. These be-pilots fly over our village almost every day. They spy on people and steal their lives. Children are afraid to go to school. People are afraid to stand in a group because they fear these planes will shoot a missile at them.”
On Oct. 2, the U.S. Department of Health and Human Services proposed a new rule that would…[designate] a specific form of bone marrow — circulating bone-marrow stem cells derived from blood — as a kind of donation that, under the 1984 National Organ Transplant Act, cannot be compensated. If this rule goes into effect (the public comment period ends today), anyone who pays another person for donating these cells would be subject to as much as five years in prison and a $50,000 fine.
Here’s why it’s a bad thing:
altruism has proven insufficient to motivate enough people to give marrow and, as a result, people die… Each year, 2,000 to 3,000 Americans in need of marrow transplants die waiting for a match. Altruism is a virtue, but clearly it is not a dependable motive for marrow donation.
Satel notes earlier in the article:
Locating a marrow donor is often a needle-in-a-haystack affair. The odds that two random individuals will have the same tissue type are less than 1 in 10,000, and the chances are much lower for blacks. Among the precious few potential donors who are matched, nearly half don’t follow through with the actual donation. Too often, patients don’t survive the time it takes to hunt for another donor.
Allowing compensation for donations could enlarge the pool of potential donors and increase the likelihood that compatible donors will follow through. So the [recent] ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit [authorizing compensation for donors] was promising news for the 12,000 people with cancer and blood diseases currently looking for a marrow donor.
I can see two potential problems: the first is that people might donate bone marrow out of economic desperation, and this feels wrong to us at first glance. But is it really? Particularly when both parties benefit so readily from it? Indeed, given the risks of bone marrow donation, don’t donors deserve to be compensated? This is an objection which could be readily met by setting a threshold for compensated donations, to ensure that donors are compensation fairly for their donation.
The second problem is a more difficult one. There is potential that for-profit donations may eventually crowd out uncompensated donations, since why would any stranger do for free what they can get paid to do instead? Particularly when they’re making such an essential sacrifice—their own body?
At the end of the day though, I think the balance of equities weighs in favor of allowing for-profit donations. I have enough faith in the goodness of people that crowding out will be minimal. If someone walked up to me tomorrow and said I could save someone’s life with a bone marrow transplant, but that they couldn’t afford to pay me, I like to think that my decision would not be based on the lack of compensation. Meanwhile, some people may be more likely to donate if they know their risks will be well compensated. Allowing for-profit donations seems to be the better side of the argument, from my point of view.
According to the article, the police officer fired his gun only after being assaulted by the newlywed firefighter, who had been in an argument with a cab driver and attempted to evade capture.
I’d like to accept the officer’s story at face value. So let’s assume he was justified in confronting the man. Let’s assume he was also justified in chasing him, and that he was legitimately afraid for his life when he fired his gun. Let’s assume the officer had probable cause in all the right places, and that he was legitimately being attacked.
Why did he use his gun?
There are multiple other solutions. He could have used pepper spray. In the event that use of the pepper spray was impractical given his proximity, he could have used a taser. This would have almost certainly incapacitated his attacker. While tasers are hardly perfect technology, it would have been infinitely better for everyone involved. Both pepper spray and tasers are marketed precisely for a situation where you need to stop a violent attacker. So why was a gun necessary here?
Police officers have a dangerous job, and they are entitled to defend themselves when their lives are at risk. At the same time, the risk of violent confrontation in apprehending a suspect is part of the job. And they have multiple, highly effective, non-lethal tools at their disposal to stop a violent attacker in their tracks. Countless tragic deaths could be avoided if police would simply reach for a non-lethal alternative more often in these situations.
In this case, a young man who was probably inebriated, agitated, and making poor decisions is now dead—rather than merely injured or incapacitated—because a police officer decided to use lethal force to defend himself, where non-lethal force almost certainly would have sufficed. We need police departments to start training their officers to use non-lethal force against unarmed violent attackers when possible. Otherwise, these unnecessary deaths will continue to occur.
Sullivan spots Yuval Levin waxing philosophical on the ideological relationship between Edmund Burke and Thomas Paine, and how modern political Liberalism inherits Paine’s thinking:
The fundamental utopian goal at the core of Paine’s thinking—the goal of liberating the individual from the constraints of the obligations imposed upon him by his time, his place, and his relations to others—remains essential to the left in America. But the failure of Enlightenment-liberal principles and the institutions built upon them to deliver on that bold ambition and therefore on Paine’s hopes of eradicating prejudice, poverty, and war seemed to force the left into a choice between the natural-rights theories that Paine thought would offer means of attaining his goal and the goal itself. In time, the utopian goal was given preference, and a vision of the state as a direct provider of basic necessities and largely unencumbered by the restraints of Paine’s Enlightenment liberalism arose to advance it. …
Today’s left, therefore, shares a great portion of Paine’s basic disposition, but seeks to liberate the individual in a rather less quixotic and more technocratic way than Paine did, if also in a way that lacks his grounding in principle and natural right.
When I started this blog, I selected Thomas Paine as my portrait because I believe that, among the Founding Fathers, his political philosophy is closest to my own. His definition of freedom in civil society—as it relates to human flourishing—is in my opinion the most practical and complete that I have encountered.
Paine acknowledges that a society premised on perfect negative liberty results in a great deal of unnecessary suffering. In a world of scarce resources, each member of society will by necessity, assert their freedom in spheres of competing interests. This is the “state of nature” so feared by Hobbes et al. A place where no convention bars the assertion of one’s presence or authority over another’s person or property.
The conventions of Civil society deliver us from this "nasty, brutish, and short" (not to mention insecure and unpredictable) existence that the state of nature entails. However, in adopting these conventions, caution must be taken when crafting the institutions which will enforce those conventions. A society that does not protect the individual from over-reaching institutions (e.g. government) will inevitably cannibalize the newly secured liberties it seeks to protect.
Paine understood that the preservation of negative Liberty—liberty of the natural person—is a means towards achieving human flourishing in civil society (as opposed to simply an end in itself). He also understood that limitations on human choice caused by circumstance are no less a denial of liberty at the ground level than limitations imposed by law. Paine understood that a well-functioning civil society requires, as a practical matter, both negative and positive liberty—liberty preserved by convention—to maximize human freedom.
This is how we get a Thomas Paine who, on the one hand, criticizes the concept of private property in Agrarian Justice, deeming it to be a civil convention that, while beneficial, requires government to remit compensation to each individual in return for his or her loss of liberty to enter every part of the world that has been deemed the enforceable property of another—an inevitable result of the “Social Contract” which created the convention of publicly enforceable private ownership by which all people in a society agree to live.
Thomas Paine’s “Liberalism” is a political ideology that focuses on the maximization of what might be termed “Practical Liberty.” It is premised on the theory that economic desperation and poverty are also limitations on human liberty, and that economic redistribution can be used to ensure that no member of civil society becomes trapped by circumstance. On the other hand, it recognizes that the police power of the state is the most terrifying, and also prone to grievous error—thus, no punitive restriction on human action should exist, save those which are absolutely necessary to preserve a tolerable level of domestic tranquility, and to bolster human freedom in its practical dimensions.
With all this being said, you’re mileage on Paine may vary. Paine, much like his contemporaries, was verbose, and—also like his contemporaries—prone to contradicting himself from time to time. Nonetheless, the same could be said of virtually every great thinker, given the breadth of ground they often attempt to cover. On the whole, I think the fundamentals of Paine’s political philosophy present the most ideal path for establishing a civil society that maximizes both human liberty and human flourishing in equal measure.
The FBI, which annually tracks every two-bit break-in, car theft, and felony, keeps no comprehensive records of incidents involving police use of deadly force, nor are there comprehensive national records that track what police officers do with their guns… . The FBI’s Uniform Crime Report does include a more limited category of “Justifiable Homicide by Weapon, Law Enforcement,” defined as “the killing of a felon by a law enforcement officer in the line of duty.” That figure has hovered around 400 annually for the last several years. (In 2010, it was 387, down from 414 in 2009; in 2006, it was 386.)
The Department of Justice’s Bureau of Justice Statistics has been compiling data on deaths of suspects following arrests, but the information covers just 40 states and only includes arrest fatalities. From January 2003 through December 2009, bureau statistics show 4,813 deaths occurred during “an arrest or restraint process.” Of those, 61% (2,931) were classified as homicides by law enforcement personnel, 11% (541) as suicides, 11% (525) as due to intoxication, 6% (272) as accidental injuries, and 5% (244) were attributed to natural causes. About 42% of the dead were white, 32% were black, and 20% were Hispanic.
This piece of shit got American soldiers killed, he’s not a hero, he’s a fuck up and a murderer! Even he’s admitted that, from his own mouth! Pay attention people, he’s says he was wrong! WTF
The claim that American soldiers died as a result of Manning’s disclosures is typically tied to the disclosure of the Afghan war logs. The evidence on this point is extraordinarily lacking. Retired Brigadier General Robert Carr stated after Manning’s trial that "he had never heard that a source named in the Afghan war logs was killed." Defense Secretary Robert Gates stated in 2010 that the alleged harm caused by Manning’s disclosures was “fairly significantly overwrought.” This is important, because if even a singleAmerican soldier had been killed as a result of Manning’s disclosures, Gates’ statement would have been a gaffe of epic proportions. He would have been accused of ignoring or minimizing the deaths of American Soldiers. Luckily for Gates, it was not a gaffe, because not a single journalist with any credibility—nor a military official with access to government intelligence—has ever established a link between Manning’s disclosures and the death of a single American soldier.
With respect to being a “fuck up and a murderer,” I think you will find that Manning said no such thing. What he did do is express regret for his actions during the sentencing phase of his trial because that’s what one does when one is in front of a judge who is about to determine how many years of your life you get to spend in a cage once the proceedings are over. When you go before a judge to receive your sentence, expressions of defiance and pride are generally met with a longer sentence. It is silly to presume from statements made at Manning’s sentencing hearing that he was admitting to being a “fuck up and a murderer.” I’m quite sure if you were placed in the same position, you would plead for mercy as well, as would I, and most sensible people who’s liberty is at steak.
It’s like dark comedy, only it’s real life. Here are some statistics for Presidential Pardons relative to number of applications for clemency:
Ronald Reagan: 1 in 8
George H.W. Bush: 1 in 19
Bill Clinton: 1 in 16
George W. Bush: 1 in 55
Barack Obama: 1 in 290
Political liability is not an excuse. This is unprecedented restraint. It seems like a good time to recall the words of Alexander Hamilton in Federalist 74:
The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.
Some of these are not hard cases. In the case of Weldon Angelos, a first-time offender sentenced to 55 years in prison, a Republican-appointed Judge who wrote Angelos’ sentencing order actually requested that the President pardon Angelos, because the 55-year sentence mandated by law was manifestly unjust:
[This] court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational … To correct what appears to be an unjust sentence, the court also calls on the President—in whom our Constitution reposes the power to correct unduly harsh sentences—to commute Mr. Angelos’ sentence to something that is more in accord with just and rational punishment.
Why has the Obama administration not acted on this case? Why are turkeys representing a greater proportion of Obama’s presidential pardons than any of his republican or democratic colleagues in the past 4 decades? This is shameful. And it needs to change.
“When presidential primary candidates compete to see who can be harsher on undocumented immigrants and the TV pundits say they’re doing so to win the “evangelical vote” in the Iowa Caucus, the undocumented within our churches notice. When the church’s parking lot is marked with bumper stickers for a candidate who proposes—to wild applause—the construction of an electrified fence that would kill those who attempt to unlawfully enter the United States, the unintentional message is: “I’d rather you’d be dead than sitting next to me at church.”—AZspot: Crossing Borders in the Church: On Embracing Undocumented Immigrants
This is the dumbest interpretation of the Pope’s comments that I have read today. It’s not anti-capitalism and it’s completely consistent with remarks previously made by Pope John Paull II and Pope Benedict XVI.
Catholic social doctrine has always supported that equitable distribution of goods is a priority. Naturally, profit is legitimate and, in just measure, necessary for economic development.
In his Encyclical Centesimus Annus, John Paul II wrote: “The modern business economy has positive aspects. Its basis is human freedom exercised in many other fields” (n. 32). Yet, he adds that capitalism must not be considered as the only valid model of economic organization (cf. ibid., n. 35).
Starvation and ecological emergencies stand to denounce, with increasing evidence, that the logic of profit, if it prevails, increases the disproportion between rich and poor and leads to a ruinous exploitation of the planet.
Instead, when the logic of sharing and solidarity prevails, it is possible to correct the course and direct it towards an equitable, sustainable development.
“Look at the difference: In 1977 I bought a small house in Portland Oregon for $24,000. At the time I was earning $5 per hour working at a large auto parts store. I owned a 4 year old Chevy Nova that cost $1,500. Now, 36 years later that same job pays $8 an hour, that same house costs $185,000 and a 4 year old Chevy costs $10,000. Wages haven’t kept up with expenses at all. And, I should point out that that $5 an hour job in 1977 was union and included heath benefits.”—
an anonymous online commenter on the current economy. (via alchemy)
LTMC: When I was working at a gas station, I had an old-timer come in and tell that he used to make $2/hour at a factory job when he was in his late 20’s. He said he could feed his whole family for the night by buying a 24-cut pizza for $2. Fast forward to my gas station job, where I was making $8/hour, but a 24-cut pizza in my town costs closer to $20—2.5 times more on a dollar-for-dollar basis. He said he had no idea how I even survived on what I was making (I was insured through college at the time, but had no savings, and relied on family for large expenses).
This is what people mean when they talk about income inequality. The reason wages have not kept pace with expenses is because the nation’s previous method of wage redistribution—union representation—has declined substantially. Wage increases have subsequently been absorbed on an increasingly larger basis by corporate entities and the top 1% of earners. Strong unions used to serve as a soft redistribution mechanism to help ensure that increases in prosperity were shared equally. A critical mass of union representation in the labor force has always had derivative wage benefits in the non-union labor market. That critical mass no longer exists, however. Consequently, the decline of union labor has led to a concurrent decline in wages relative to expenses, because there’s no longer an institutional mechanism for redistribution of earnings increases in the economy. The critical mass of union representation is gone, and nothing has taken its place.
Jonathan Turley discusses a recent case in Texas where the jury acquitted a Defendant for driving while intoxicated despite having a blood alcohol content that was clearly above the legal limit. The judge was unhappy with the jury’s verdict, and he decided to tell them how he felt about their verdict:
The jurors in Tarrant County found David Tran, 17, not guilty of drunken driving despite a blood alcohol level of .095 — above the legal limit of .08. Faced with such a small level above the line, the jury had asked the judge if it could ignore the reading of the BAL device. They apparently did just that and Ray was enraged.
He first told Tran, “You got lucky. You absolutely are legally guilty of this offense.” He told the jurors:
I’ve been at this such a long time I know better than to get angry. But you just decided to ignore the law and your oath, and you know you did. The note that you sent out says, “Can we ignore the Intoxilyzer.” And you have the definitions of intoxication. And they were certainly—At least that one was very plain in this case and up on the board for you to see. And for whatever reasons, you chose to ignore that part of the evidence. And you have the right to do that. It’s called jury nullification. It’s when a jury decides to ignore the law or ignore the evidence. And they just want a certain outcome, and they maneuver until they get there. Perfect example, the O.J. Simpson trial. He clearly committed murder, and the jury didn’t want to convict him, so they found a way to—to render a not guilty verdict. So it happens. I’ve been around over 40 years in this profession, tried an awful lot of cases as a defense lawyer, as a prosecutor, and as a judge, and it happens. But this ranks among there as one of the most bizarre verdicts that I’ve seen. Thank you for your service, and you are excused.
This is a clear violation of judicial ethics. Turley pulls some of the provisions of the Texas judicial ethics code:
CANON 3 Performing the Duties of Judicial Office Impartially and Diligently
A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge’s other activities. Judicial duties include all the duties of the judge’s office prescribed by law.In the performance of these duties, the following standards apply: B. Adjudicative Responsibilities. … (4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials and others subject to the judge’s direction and control. (5) A judge shall perform judicial duties without bias or prejudice. (6) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge’s direction and control to do so… .
Telling a jury that they made the wrong verdict is horrifyingly prejudicial to the Sixth Amendment rights of the Defendant. As Turley notes, the judge’s outburst is not simply bad form—he is creating a public record which suggests that Trans is guilty despite having been acquitted by a jury of his peers. That is a gross breach of judicial ethics, and one for which Judge Ray should be censured, if not removed from office.
[T]he original Hebrew text of the Old Testament mentions an animal called a “reem.” When scholars tried to translate this word into Greek, they were flummoxed. They had no idea what this “reem” was. They knew it was big, and it had horns, and that it obviously wasn’t a goat. (Goats are mentioned elsewhere in the Bible.) So they translated it as “monoceros,” meaning “one-horn.” Then, when the Greek Bible was translated into Latin, the word became “unicornus.” And that word, translated into English, is unicorn.
Turns out, “unicornus” is just an ox:
Early in the 20th century, when scholars cracked the code on ancient cuneiform script, they finally learned what that mysterious reem really was. In these ancient texts, written around the time when the Hebrew Bible was being penned, there are many references to an animal called a rimu. Like the biblical reem, the rimu was enormous, strong, and had horns. That animal was an ox. So all of those references to unicorns in the Bible? Those are actually to an ox. Which, if you read the actual sections of the Bible, makes a lot more sense.
Well then. Consider your childhood dreams shattered. Unless you’re way into oxes. Which, you know, is it’s own thing.
Thank you for calling the Al Qaeda complaint line and remember, if you are complaining, you are an abomination in the eyes of Allah and deserve death.
Good thing the U.S. government was ready to help these folks against the Syrian government. On the other hand, I guess a little democracy is better than no democracy at all—unless you happen to live under a benevolent dictator (not Assad). In that case, Al Qaedian democracy probably not the prime option.
Imagine the following: A police officer pulls somebody over for speeding. He encounters the driver, and realizes that the driver is recording the officer with a camera. The officer seizes the camera, and calls a prosecutor for advice on whether the officer can arrest the driver for violating the state’s Wiretap statute. The prosecutor says yes. Later, the prosecutor’s advice turns out to be completely wrong. Can the victim sue the cop for arresting him? What about the municipality that the officer works for? How about the prosecutor?
The answer to the first and second questions are no, according to the Third Circuit. Because the officer reasonably relied on the advice of the prosecutor, the officer was entitled to Qualified Immunity for arresting the Plaintiff. Furthermore, because the Plaintiff couldn’t establish municipal liability under Monell v. Dep’t of Social Services, he was up a proverbial creek without sufficient means of locomotion.
In order to beat Qualified Immunity, you have to show that a government official (1) violated a constitutional right, and (2) the right was clearly established. Attendant to number (2) is the idea that a constitutional right must be so well established that a “reasonable officer under the circumstances” would know they were violating the law.
Erstwhile, in order to establish municipal liability for a government official’s conduct under § 1983, you have to show that the official’s conduct was the result of a pattern of conduct on the part of the municipality which would cause government officials to violate someone’s constitutional rights. One of the most common ways to do this is by showing that the municipality failed to train its officers effectively. Another way to do it is by showing that the municipality regularly ignores legal violations by its officers. If you can’t do this, you probably won’t be able to sue the municipality under § 1983.
The Plaintiff in the case above wasn’t able to do either of these things. He couldn’t beat Qualified Immunity even though his rights were clearly violated, and the law was clearly established. Even when your rights are clearly established, according to the court, government officials are allowed to be bad at their jobs:
[A]lthough “[P]olice officers generally have a duty to know the basic elements of the laws they enforce,” id., in circumstances when a police officer “neither knew nor should have known of the relevant legal standard,” qualified immunity may still be granted. Harlow, 457 U.S. at 818-19. In other words, there are circumstances wherein a police officer’s violation of a law may be within the bounds of reason, even though the law in question can be said, from the comfort of an armchair, to be “clearly established.” See, e.g., Amore, 624 F.3d at 535 (2d Cir. 2010) (“‘The statement in Harlow that reasonably competent public officials know clearly established law is a legal fiction.’ Qualified immunity is appropriate in ‘those situations in which the legal fiction does not make sense and applying that fiction would create problems that qualified immunity is intended to avert.’” (citation omitted) (quoting Lawrence v. Reed, 406 F.3d 1224, 1237 (10th Cir. 2005) (Hartz, J., dissenting)))
In other words, police are allowed to violate clearly established constitutional rights so long as the police are “reasonably” ignorant of the legal standards that govern their jobs. Wonderful. But if the police are protected, surely somebody can be held responsible for the Plaintiff’s Constitutional injury. What about the prosecutor? Can he be held responsible for his erroneous legal advice? Like a private attorney would be under similar circumstances?
Nope. Prosecutors have absolute immunity from civil suit under Imbler v. Pachtman. There is a small chink in the prosecutor’s armor, clarified by Burns v. Reed, which allows prosecutors to be sued for actions taken during the “investigative” stage of criminal prosecution, but not for actions taken during the “judicial” stage of the prosecution. Later, the Supreme Court clarified in Kalina v. Fletcher that prosecutors must be “acting as lawyers” rather than “complaining witnesses” in order to be granted absolute immunity.
In this case, the prosecutor was certainly acting as a lawyer. He was giving legal advice to a police officer. However, his advice was arguably given during the investigative stage of a criminal proceeding. But here’s the catch: the prosecutor was essentially signing the Plaintiff’s arrest warrant. This means that the prosecutor is likely off the hook, since in Kalina v. Fletcher, the court granted the prosecutor immunity for statements made in a motion for an arrest warrant. She was denied immunity for a certification that accompanied the motion—but nothing analogous to a certification was made here.
And so once again, the Plaintiffs in a § 1983 action are left without a remedy for a clear violation of their constitutional rights. To be sure, the results of this case were not all bad for the Plaintiff—if you read the opinion, you’ll discover that the officer made the mistake of seizing the Plaintiff’s camera before calling the prosecutor for advice, so the court held that the officer could not claim qualified immunity for the seizure itself.
But what about the arrest? Can the Plaintiff sue for being thrown in a jail cell for 27 hours? Can he sue for the humiliating, fear-inducing experience of being arrested and manhandled by a government agent with a badge and a gun? Can he sue for the indignity of being herded into a prison cell like human cattle? Of being paraded through the station house with handcuffs on? Of having his face exposed to the degrading public shame of being placed in the back of a police car?
Nope. He can’t sue the cop. He can’t sue the municipality. And he very likely can’t sue the prosecutor. Another victim of illegal government conduct gets caught in the Qualified Immunity trap.
“Loftus’s research has already rattled our justice system, which relies so heavily on eyewitness testimonies. Now, the findings showing that even seemingly impeccable memories are also susceptible to manipulation could have ‘important implications in the legal and clinical psychology fields where contamination of memory has had particularly important consequences,’ the PNAS study authors wrote.”—
The city of San Francisco was enthralled last week when Batkid came to town. The Make-A-Wish Foundation made young Miles Scott’s dream of becoming a superhero come true and more than 13,000 people turned out to cheer him on. But one of those people didn’t make it home.
D’Paris “DJ” Williams, 20, had just left the Batkid festivities and was returning to his home in the city’s Valencia Gardens apartment in San Francisco’s Mission District. Williams had just ridden his bike up to his front door when he got into an altercation with a group of plainclothes police officers who were reportedly talking to him for riding his bike on the sidewalk. Photographer Travis Jensen, who witnessed the incident, told Uptown Almanac that as Williams tried to enter his home with his sister standing in the doorway with a newborn baby, officers grabbed him from behind. After searching him, officers uncovered a cupcake and juice that Williams had just purchased from a corner store and began to beat him.
Williams was then taken to a local jail. In the above video, he is seen bloody and screaming as he’s led away to a police cruiser. Meanwhile, angry neighbors who witnessed the incident were then targeted by police officers. In total four people were arrested, including, according to Uptown Almanac, an elderly HIV-positive man whose medical complications require him to use a cane that police determined was a “deadly weapon.”
How many more times do we have to read these laughable accounts of police activity before we reach a cultural consensus that cops can and regularly do “massage” the facts surrounding their on-duty decision making?
Juries can prevent bad police work from throwing people in prison by refusing to convict based on shoddy police testimony. Unfortunately, many people believe that the testimony of police officers is inherently credible, because they are “heroes” and “professionals” who fight the “bad guys.”
These cultural narratives inform jury decision-making. You have to come to the jury box armed with the knowledge that police can—and often do—lie about what happens in the course of their duties. That they are not always heroes. That they regularly make outrageous claims that fly in the face of logic. And that they take advantage of their reputation in cases where their testimony is the only evidence that a crime was committed. A well-informed juror can stop this from happening. And we create well-informed jurors by continuing to raise the profile of outrageous police conduct when it occurs.