May 31, 2012
Modeling Police Accountability

Recently, I wrote an article (which will hopefully be published) criticizing Scalia’s 2006 majority opinion in Hudson v. Michigan.  In that opinion, Scalia and his fellow concurring justices on the Supreme Court held that the Exclusionary Rule did not apply to violations of the knock-and-announce rule.  Scalia believed that it was not necessary to exclude evidence obtained in violation of the knock-and-announce rule because, inter alia, police departments seemed to be exhibiting greater degrees of “professionalism,” suggesting that they take violations of constitutional rights seriously.  Scalia claimed that internal review procedures and professional discipline would serve to adequately chastize misbehaving officers.  Here is the operative paragraph of Scalia’s opinion, in its entirety:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, United States v. Payner, 447 U. S. 727 , n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950–1990, p. 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e.g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBridge, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See Canton v. Harris, 489 U. S. 378, 388 (1989) . Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

My paper piggy-backed on Radley Balko’s now infamous criticism of Scalia’s claim, which Balko termed “the New Professionalism.”  Much like Balko, I set out to provide examples that contradicted Scalia’s claim.  But more importantly, I identified several factors which make it difficult for Internal Affairs Units and prosecutors to hold police accountable in the way that Scalia asserts.  Those factors can be summed up as follows:

1. The Police-Prosecutor Relationship.  There are well-documented sociological and subcultural phenomena that define the professional relationship between police and prosecutors which disincentivize prosecutors from filling criminal charges against malfeasant police.  These phenomena generally manifest in two ways: a) Law enforcement officials stonewall a prosecutor’s criminal investigation of their fellow officers (i.e. “the Blue Shield” or “Blue Wall of Silence”), and b) Police expect solidarity from prosecutors when it comes to the daily grind of law enforcement. Both phenomena, for various reasons, make it difficult for prosecutors to press charges against police.  The “Blue Shield” also disincentivizes Internal Affairs officers from disciplining their fellow officers.

2. Fourth Amendment & Qualified Immunity.  The Supreme Court’s slow-and-steady redefinition of “objective reasonableness” for the purpose of analyzing Fourth Amendment violations has inadvertently increased the scope of Qualified Immunity protection for police officers whose injurious conduct is increasingly viewed as “constitutionally reasonable” by the courts.  This makes it more difficult to hold law enforcement officials liable through a civil suit for monetary damages, because Qualified Immunity renders them immune from suit unless they violate a “clearly established constitutional right.”  So when courts expand the definition of what is “objectively reasonable” for law enforcement officials, they expand by an equivalent measure the amount of police conduct is protected by Qualified Immunity.    

3.  Abrogation of Common Law Right-to-Resist.  Many state jurisdictions have abrogated the right to resist an unlawful arrest.  In those jurisdictions that have abrogated the common-law rule, this leads to two outcomes: a) officers are incentivized to behave with impunity because they know that they are literally “untouchable,” and b) individuals who do resist are often prosecuted for Assault on a Police Officer.  As Scott Greenfield explained in 2011, these laws essentially give police officers the ability to engage in criminal behavior with little fear of prosecution, because it is often extraordinarily difficult to distinguish between an unlawful arrest, and a lawful arrest that is merely accompanied by illegal conduct.

After discussing these three issues, I suggested reforms that can help increase the level of accountability in police departments.  One of those reforms was for prosecutor’s offices to create a separate, distinct unit for investigating allegations of police misconduct.  By removing prosecutors from the daily grind of police activity, you remove many of the negative incentives that define the professional relationship between prosecutors and police.  The police expectation of solidarity from prosecutors largely comes from the fact that police and prosecutors work closely with one another, and often develop close working relationships.  This is much less likely to happen when the prosecutors who are investigating allegations of police misconduct have less day-to-day contact with the police in their jurisdiction, leading to more objective prosecutors who are less afraid to bring charges against police officers who commit crimes while wearing their uniform.

With this being said, I was heartened to see my recommendation vindicated when I read a story in the Washington Post about a police officer who was recently indicted in Virginia on charges related to the fatal shooting of a female motorist:

The indictment, handed up by a special grand jury, is highly unusual. There have been few cases in the United States in which an officer has faced so serious a charge in connection with actions taken on duty.

Indeed.  But part of what makes this case unusual is in the way it was handled.  Tim Lynch at Cato’s NPMRP elaborates:

First, a separate police agency was brought into the case.  All too often the same agency ends up investigating itself.  Second, a special prosecutor was appointed to the case.  That was another important move.  The local prosecutors work with the local police week to week.  They depend on the police to help them win in court.  Even if there is evidence of wrongdoing, prosecutors often look the other way so as not to “rock the boat.”

Precisely. When these sort of common sense reforms are put into action, they increase the likelihood that law enforcement officials will be held accountable in cases where they exceed the bounds of their authority.  Everybody understands that police often have to make split-second decisions in dangerous situations.  But it doesn’t follow that they should be granted impunity as a result.  When a law enforcement official’s conduct rises to the level of criminal culpability, he ought to be held accountable, same as anyone else.  These types of reforms ensure that prosecutors can play a more meaningful role in that process.

1:56am  |   URL: http://tmblr.co/ZMMjnxMTRXz_
(Notes: 4)
  
Filed under: politics police prosecutors criminal law criminal justice 
May 31, 2012
"After interviewing more than 20 tribal leaders, victims’ relatives, human rights activists and officials from southern Yemen, journalist Sudarsan Raghavan concluded that the escalating U.S. strikes are radicalizing the local population and stirring increasing sympathy for al-Qaeda-linked militants. “The drones are killing al-Qaeda leaders,” said legal coordinator of a local human rights group Mohammed al-Ahmadi, “but they are also turning them into heroes."

—

Medea Benjamin

h/t anticapitalist

12:45am  |   URL: http://tmblr.co/ZMMjnxMTGkE_
(Notes: 49)
  
Filed under: politics drone attacks obama war on terror yemen 
May 31, 2012
"These [Distracted Driving] laws give police officers yet another pretext to fabricate traffic stops. People are stopped every day for suspected cell phone use or other diversions and then subjected to interrogation for unrelated matters and to searches of their automobiles and of their person. Without question driving while texting is dangerous, but an additional risk not considered by most people is the effect of increased regulation further eroding our civil rights?"

— Peter Johnson, General Partner of the Johnson & Johnson law firm in Walnut Creek, California.  Johnson’s firm has filed a lawsuit challenging California’s “Distracted Driving” law.  68,000 California drivers were issued citations for Distracted Driving last month alone.

12:31am  |   URL: http://tmblr.co/ZMMjnxMTEDZ1
(Notes: 11)
  
Filed under: politics criminal law criminal justice distracted driving california 
May 30, 2012
Are Men’s Bodies Repulsive?

Apropos of this recent post about Male objectification, I happened upon Hugo Schwyzer’s March 2011 article at the Good Men Project reflecting on male body image issues:

In sixth grade, the same year that puberty hit me with irrevocable force, I had an art teacher, Mr. Blake…[who said] that great artists all acknowledged that the female form was more beautiful than the male…

In time, I discovered that Mr. Blake was wrong about this so-called artistic consensus. But it took me a lot longer to unlearn the damage done by remarks like his and by the conventional wisdom of my childhood. I came into puberty convinced both that my male body was repulsive and that the girls for whom I longed were flawless.

Schwyzer talks about the first time he had sex:

A year later, in my first sexual relationship, I was convinced that my girlfriend found my body physically repellent. I could accept that girls liked and wanted sex, but I figured that what my girlfriend liked was how I made her feel in spite of how my body must have appeared to her. Though I trusted that she loved me, the idea that she—or any other woman—could want this sweaty, smelly, fumbling flesh was still unthinkable.

Later, Schwyzer (who describes himself as bicurious) recounts a sexual encounter with an older man:

I remember one night when I was still in high school that I had sex with a much older man. He was maybe 40, and I couldn’t get enough of the way he looked at me. I felt a rush of elation and relief so great it made me cry. The sex I had with him was not based on my desire for him; rather, I wanted to make him feel good out of my own colossal gratitude for how he had made me feel with his words and his gaze. As we lay on a motel bed, this man ran his fingers across every inch of my body, murmuring flattery of the kind I had never heard from a woman’s lips… I was floored. How different those words were from my ex-girlfriend’s “Hugo, you make me feel so good.” While she had praised my technique, this stranger praised my body’s desirability. And I realized how hungry I was for exactly that kind of affirmation. I needed something to counter that old certainty that my male body was disgusting.

Some of the comments evoke what I was saying the other day about the delicate overlap between objectification and the inherently human impulse/need to be sexually desired.  Stephen writes:

My last relationship came to an end in part because I never really felt like my girlfriend thought I was attractive. After two years, I cannot name one time she just told me she thought I was cute/hot/attractive/whatever. It’s a little disheartening, honestly.

Brendan concurs:

I relate so much. I’ve felt this way nearly all my life. I’m really surprised that someone addressed this issue, and so succinctly. In the past, I’ve not been taken seriously when expressing these concerns; and at times, people have insinuated that I’m not straight (to put it nicely). However, I am straight. Remarkably, I can trace this anxiety to the same nursery rhyme, and also, a teacher’s insensitive comments.

Natureartist confirms Schwyzer’s thesis:

When I was as young as 14 I use to argue about this very issue. My Dad was into photography, and I questioned him as to why only women were the subjects in his photography magazines. He claimed that women were beautiful and men were ugly. Unfortunately, I didn’t get the memo on that. He and I had many spirited arguments on the issue. I always claimed that men were just as beautiful, but it was to no avail when arguing with him. I just agreed to disagree. It is interesting to me that one would even want to see themselves as anything but desirable and attractive.

Jess sees male insecurity reflected in her work:

I’m an art student, and in my figure drawing classes we have yet to have a male model. I’d love to draw one – I’ve become incredibly adept at drawing many different kinds of female figures, from young woman to very old woman, but for the most part I’ve had to teach myself how to draw men. I’ve sat in public and drawn them, I’ve looked up reference photos, and one of my friends even suggested that I look to porn sites and erotic photo collections for varied male nudes.

Dominick brings it home:

I’m gay — hot men’s bodies are awesome.

Indeed.

See also Noah Brand’s recent article about his insecurity with his naked body (NSFW).

10:20pm  |   URL: http://tmblr.co/ZMMjnxMSmYAw
(Notes: 31)
  
Filed under: politics feminism relationships 
May 30, 2012
"[I]n The Worst of Times, a collection of interviews with women, cops, coroners, and practitioners from the illegal abortion era… a man who assisted in autopsies in a big urban hospital, starting in the mid-1950s, describes the many deaths from botched abortions that he saw. “The deaths stopped overnight in 1973.” He never saw another in the 18 years before he retired. “That,” he says, “ought to tell people something about keeping abortion legal."

— Eleanor Cooney, “The Way It Was.”

7:56pm  |   URL: http://tmblr.co/ZMMjnxMS8EZw
(Notes: 53)
  
Filed under: politics abortion womens rights 
May 30, 2012
4 Year-Old Sings “Ain’t No Homos Gonna Make It To Heaven” In Indiana Church

From Joe My God:

It’s apparently an actual song and not only did they teach it to a four year-old, they proudly brought him up to the pulpit to perform it, generating whoops and a standing ovation from the congregation. 

A Sullivan reader writes:

The church is in Greensburg, Indiana, where Billy Lucas was bullied to death for being perceived to be gay in September 2010. It was Lucas’s suicide that led to the creation of the It Gets Better project.

I can only hope that the kid isn’t scarred for life.  I can’t imagine what other vitriol has been pumped into the child’s head under the guise of religious morality.

2:02pm  |   URL: http://tmblr.co/ZMMjnxMQoI0-
(Notes: 19)
  
Filed under: politics religion gay rights indiana 
May 30, 2012
"This program rests on the personal legitimacy of the president, and that’s not sustainable,” Mr. Hayden said. “I have lived the life of someone taking action on the basis of secret O.L.C. memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. safe."

— Michael Hayden, CIA Director under Bush II, discussing the White House assassination list.

1:38pm  |   URL: http://tmblr.co/ZMMjnxMQkEye
(Notes: 20)
  
Filed under: politics war on terror assassination drone attacks 
May 30, 2012
"

I’m an Iraq war veteran, though I very rarely tell people that. Partly because I never kicked in any doors or anything - I had about the cushiest of war zone duties possible, although being in Kirkuk in 2006-2007 meant lots of random mo[r]tar/recycled rocket attacks and stuff. But the other reason I never tell anyone about it is the reaction, like everything about me being there was unambiguously positive.

Which brings me back to the idea of mandatory reverence around the flag, Memorial Day, July 4, etc… [I]t makes me angry when people are just unable to have two thoughts in their head at once - that we should be respectful of those who do the things no one else really wants to do, like kill people, and that sometimes, just maybe, the stuff we ask them to do is terrible…

Maybe it’s that I grew up in a world run by Baby Boomers (I’m 30), who seem especially incapable of understanding nuance of any sort, but it seems that most people who “fly the flag” and “support the troops” subscribe to this uncompromising approach to patriotism. I don’t know how exactly to fold some self-reflection into these holidays, but I think it would sure help those of us who see a lot more gray in the things we’ve done.

"

— Sullivan Reader, discussing Memorial Day.  More like it here.

1:05pm  |   URL: http://tmblr.co/ZMMjnxMQeYf-
(Notes: 297)
  
Filed under: politics military soldiers memorial day 
May 29, 2012
Hero Talk

Over Memorial Day weekend, we were treated to a familiar round of what might be termed “Hero Talk” (which is not to be confused with R. Kelly’s “Real Talk:” arguably his most exquisite piece of performance art since Trapped in the Closet Pt. 1).  

Unlike Real Talk, however, “Hero Talk” most often centers around men and women in the armed forces.  These men and women are deserving of praise because, the argument goes, serving in the military is a prima facie act of heroism.

Whenever someone starts a conversation about heroism and the military, we are inevitably treated to a particular brand of outrage that has a familiar tenor.  Quite often this outrage comes from Right-wing Culture Warriors who compete with mendacious liberal commentators in a desperate race to see who can heap more praise on the armed forces before we turn all turn red, white and blue with nationalistic fervor, having been washed clean by the ablutions of patriotism, and overcome by the delirium tremens of our post-patriotic withdrawal.  

This time around, the conversation was started by Chris Hayes, who opined over Memorial Day weekend that perhaps we shouldn’t be so quick to assign “hero” status to somebody simply because they wear a U.S. military uniform; that maybe you need to do something more in order to earn that status:

I think it’s interesting because I think it is very difficult to talk about the war dead and the fallen without invoking valor, without invoking the words “heroes.” Why do I feel so [uncomfortable] about the word “hero”? I feel comfortable — uncomfortable — about the word because it seems to me that it is so rhetorically proximate to justifications for more war. Um, and, I don’t want to obviously desecrate or disrespect memory of anyone that’s fallen, and obviously there are individual circumstances in which there is genuine, tremendous heroism: hail of gunfire, rescuing fellow soldiers and things like that. But it seems to me that we marshal this word in a way that is problematic. But maybe I’m wrong about that.

Barely 24 hours later, Hayes, much like most left-leaning pundits who discuss this issue in public, issued an overwrought apology, striking a mendicant’s pose and begging to be granted clemency for his deviant remarks:

On Sunday, in discussing the uses of the word “hero” to describe those members of the armed forces who have given their lives, I don’t think I lived up to the standards of rigor, respect and empathy for those affected by the issues we discuss that I’ve set for myself. I am deeply sorry for that.

…

And now queue the outrage.  Ross Kaminsky, for the American Spectator:

At least Hayes had the courage to offer a sincere-sounding apology, though I’m certainly not alone with my suspicion that he truly believes everything he said, and everything his co-religionists in the cult of anti-Americanism said alongside him to besmirch our soldiers — living, dead, and fallen — on this Memorial Day weekend… They have every right to be idiots, though one would prefer that they at least recognize who is risking life and limb to protect that right. While I understand the temptation to waterboard Chris Hayes, the right answer is to understand that he represents today’s Democratic Party… and to vote against Democratic candidates, other than those who (unlike John Kerry) have served with honor, at every opportunity,

Kurt Schlichter, for Breitbart.com:

[T]he real problem for Chris Hayes is that he actually said what he thinks. He thinks our soldiers are suckers and fools at best, brutal sociopaths at worst. At a minimum, he feels that honoring those who died for this country might encourage people to see that actually defending our country is a good thing. He’s not quite ready to make that leap; after all, most progressives are ambivalent about this whole “America” concept, if not actively opposed to it. 

David Zurawik, in the Baltimore Sun (who unintentionally engages in self-parody):

I am not going to let anyone say, “Well, this is a legitimate intellectual critique, and thoughtful people can clearly see what he was trying to say. The blowback is just mock outrage from the right.”

No, this is pseudo-intellectual vanity and self-absorbed, TV media talk at its worst . I have a Ph.D. in American Studies, and after spending 10 years in seminars filled with too much of this kind of talk, I can accurately say that people who talk like Hayes did in his remarks are most often self-important b.s. artists[.]

Zurawik in particular is so fired up over Chris Hayes’ remarks that he accuses Hayes of being a “self-important b.s. artist” while prefacing his own comments with an authoritative reference to the fact that he has a Ph.D. in American Studies.  I’m hoping that someone with a Ph.D in Literary Studies will explain to Zurawik why this gratuitous reference to his own qualifications is ironic when couched next to an accusation of self-importance.

What bothers me most about these reactions is how unrepresentative of the American military they tend to be, in terms of how actual soldiers view their own military service.  Many soldiers resent being blindly praised for no other reason than the fact that they wear a military uniform.  Why?  Because quite often, that praise obscures their ability to communicate their often nuanced views about military life, and participation in America’s armed conflicts.  The people praising them are quite often incapable of seeing past their military uniform and into their nuanced experience of military life.  You can see this in the responses to this August article from The Hill.  Here’s one Sgt. Lewis, who said the following while declaring his support for Ron Paul:

I am a Sergeant in the U.S. Army. I support Ron Paul and I support his foreign policy. I am sure you would not dare call me a Paultard to my face.

No, you would give me the same parroted line I hear 100 times a day, “Thank you for your service”. When I hear some flabby couch potato like you say that to me it makes me sick. Yes, I serve our country, but our wars do not.

Another, Army vet:

My best friend came home in a box wearing one of those army uniforms you spoke so favorably about. Guess he wasn’t ready for the marines but he’ll never have that chance. 

I also spent three years in the army in the infantry. Not behind a desk, about half of it deployed nation building in the Balkans pre 9/11. It was stupid and counter productive. 

Another, Vietnam Vet:

I am Viet Nam Vet, a combat Vet. I have killed and seen men killed. It was all for a lie. It is always for a lie. Our government sent 60,000 young men to their deaths for a lie, for profit and their own glory. Glory of being big men but not glory where they would actually serve themselves.

And here’s another Vietnam Vet, via Sullivan:

Speaking as someone who had alternatives but instead enlisted and served nearly five years from 1967 through most of 1971, including three tours in Vietnam: No, enlisting does not make one a hero. A hero is someone who had no choice but who did the job once drafted. A hero is someone who moved to a different culture to avoid killing people. A hero is like my friend Brad who, smarter than I at the time and less fooled by the lies, used boiling water, vodka, and a sharp knife to amputate his own trigger finger to avoid having to fight someone else’s war.

This is the nuance that is lost by whitewashing all members of the military with “hero” praise.  Soldiers are not automatons.  They are as diverse in ability, intelligence, and political disposition as the population writ large.  And they, more than anyone else, know that wearing a military uniform does not automatically make you a hero.  They are also uniquely qualified to appreciate when their actions don’t seem to be achieving a greater good worthy of being labeled “heroic.”

Blindly obscuring the nuance of every American soldier’s experience by uncritically assigning them the status of “hero” reduces them to nothing more than a cartoon caricature of vague, praise-worthy character traits that in no way properly describes the actual feelings of many veterans towards their military service.  Worse yet, such uncritical praise is one of the most dangerous strains of political thought that courses through the veins of our body politic.  Nothing could be more erosive to the democratic process, or to military accountability, than a body politic which is incapable of criticizing its men and women in uniform.

Read More

11:52pm  |   URL: http://tmblr.co/ZMMjnxMPBAFm
(Notes: 65)
  
Filed under: politics soldiers military memorial day 
May 29, 2012
Obama And The Drug War

Sullivan spots a discussion about Obama’s stance on drug prohibition.  David Frum tweets to defend the President’s prohibition stance:

Not hypocritical to experiment w drugs in early life, recoil, and as a mature adult favor prohibition.

Balko fires back:

 It’s flat out immoral to enforce policies that ruin the lives of young people who make the same choices about drugs you did.

Mike Riggs:

Obama did not turn against pot smoking as an adult, he turned against it at the point in his political career when he had the most power to change policy. As a state congressman in Illinois, Obama declared the drug war a failure. He said the same thing as a U.S. Senator. As a candidate for president, he condemened (and promised to stop) medical marijuana raids. Really, Obama did not come to favor prohibition until he became president. 

Sonny Bunch:

It’s not so much that people think he’s a hypocrite for turning against pot smoking as an adult—it’s that people think he’s a hypocrite because they don’t actually think he thinks smoking pot is a big deal. He’s continuing the crackdown on weed for purely political reasons and ruining people’s lives in the process. He lacks the political courage to change an obviously broken system despite the fact that he has personal experience with the product being debated.

I think the central point here is related to a point Penn Jillette made recently in his now infamous rant about the Obama administration’s drug policy.  Frum is right to say that there is nothing hypocritical about experimenting with drugs when you are young, then later coming to the conclusion that they are harmful as an adult.  But whether Obama is being hypocritical is not really the issue here; the issue is whether Obama believes that it is in society’s best interest for drug use to be prohibited.  If he does, then he also believes that he personally would’ve been better off if he had been caught, arrested, convicted and sent to prison for using illegal drugs when he was in college.  That is the consequence of being in favor of the drug policy he supports.

If Barack Obama had been caught using “maybe a little blow” while he was in college, he would be a convicted felon today.  He would’ve spent a year or more of his life in prison, and many of the opportunities that were available to him growing up (many of which he undoubtedly worked hard for) would’ve been stolen from him, the same way that countless thousands of non-violent drug offenders have had their lives stolen from them through legal job discrimination, loss of voting rights, being banned from receipt of federal student aid, denial of professional licensing, and being banned from access to public housing or public assistance.  If he had been caught with more than “a little blow,” he would’ve spent a lot of time in prison, as mandated by federal law.

For Barack Obama to favor the status quo (as he has throughout his presidency), is to condemn his younger self to a fate that is incompatible with his current station.  Barack Obama would not be President of the United States if he had been successfully investigated, arrested, tried and convicted under the drug laws he publicly represents as necessary and morally justified.  On this account, whether or not he publicly supports drug prohibition for purely political reasons is irrelevant.  What matters is that he’s supporting a policy that would not, under any conceivable circumstance, have made his life turn out better if he was unlucky enough to be caught by law enforcement officials when he was young.  I’m not sure if that’s hypocrisy or not.  But it is gravely mistaken, and is destroying the lives of far more young people than it will ever allegedly improve.

3:32pm  |   URL: http://tmblr.co/ZMMjnxMN8JZ5
(Notes: 12)
  
Filed under: politics war on drugs obama 
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