Essentially Contested America

After the beer “summit” Professor Gates and Sgt. Crowley have agreed to more conversations about the issues that have drawn them together.  Is there a documentary is the works? Even if not, this surprise respite–assuredly orchrestrated by the president–was just what the nation needed. Two men, thrown into racial conflict, decide to engage in deliberative conversationalism about the conflict and what it means for the nation’s nation future. The specific facts are still not clearly known, and it’s difficult, at least for me, to dispell the notion that an arrest could have easily been avoided even if Professor Gates acted indignantly, and I’m incredulous that the arrest would have occurred at all had Professor Gates been white and Sgt. Crowley been white, but perhaps these points should be left to the two men in their subsequent conversations. Race, racial profiling. racism still plagues this nation. Despite how horrid the term “teachable moment” is, this is just the sort of event that can begin a national dialogue where winning is not the point. Reconciliation is.

One real and lost teachable moment in the Prof. Gates/Sgt. Crowley incident relates to how police reports ought to be read.  From the start of the process, many (including Mika Brzezinski of MSNBC’s Morning Joe) have pointed to Sgt. Crowley’s police report and his statements as the truth regarding what occurred surrounding the Prof. Gates’ arrest.   In the process, they explicitly and implicitly dismissed Prof. Gates’ statements as the statements of an interested party.  The developments of the last few days, including the release of the 911 tapes and radio transmissions related to the incident, suggest that the police report is not worthy of complete belief.  This is no surprise to those of us who teach criminal law.

Sgt. Crowley’s police report indicated that Lucia Whalen told him that she saw one of two black men with backpacks trying to force entry into Prof. Gates’ house.  The 911 tapes show that Whalen only mentioned race to the dispatcher after the dispatcher asked about the race of the suspects adding that one may have been Hispanic and she had no idea about the others.  In addition, she mentioned that the men had suitcases and may have lived in the house.  Unless Whalen gained new powers of perception between her 911 call and her conversation with Crowley – which she claimed consisted of identifying herself and little else – the part of the police report regarding the description of the putative suspects is simply fiction.  The explanation for the discrepancy could be that Whalen is lying.  However, it is far more likely that Sgt. Crowley either assumed that the suspects were black or added this detail to make his arrest of Gates appear more reasonable.   The need to make the arrest appear reasonable was particularly necessary in this case, but is present in all cases.  A police report is a post-hoc justification for an arrest.   When an arrest is justified, a police report need not be shaded in a particular direction though may be on occasion.  When an arrest is unjustified, a police report must be shaded heavily or, others might say, simply falsified.  When considered through this prism, one must ask what other parts of the police report were shaded.  Given the radio transmissions, one part of the police report that was likely shaded was the part that claimed that the kitchen acoustics made it necessary for Sgt. Crowley to leave the house.  That Gates followed Crowley out of the house and onto the porch provided Crowley the supposed justification to arrest Gates.  The police report may contain the essence of the dispute, but it almost certainly is inaccurate on key issues.   That creates a teachable moment that is unlikely to be raised during Pres. Obama’s beer summit between Gates and Crowley.

By now most have heard of the arrest for disorderly of Harvard scholar Dr. Henry Louis Gates at his home in Cambridge and the subsequent dropping of charges.  The police report notes that the police officer involved was investigating a call of a possible break-in phoned in by one of Gates’ neighbors who saw Gates and the person who drove him home trying to get into the house by shouldering open a jammed door.  The supposed break-in was called in around12:44 pm in broad daylight.  The report, the substance of which Gates disputes, suggests that when the officer arrived at the house, Gates initially refused to identify himself.  In addition, Gates supposedly repeatedly yelled at the officer and called him racist.  However, the report also notes that Gates did provide identification, but was arrested when he continued to yell at the officer after the officer left the house.  Even if one believes the police report, which is difficult to do, it is unclear why the police officer was unable to diffuse the situation.  Police officers must deal with incredibly stressful situations quite often and this would seem to be one of the least stressful of those stressful situations, dealing with a 58-year-old man who walks with a cane and had a bronchial infection that he says rendered him unable to yell at anyone and who may or may not have been upset about being investigated for breaking into his own house.  It is difficult to imagine that the following comment occurring some time during the encounter would not have diffused the situation, given that even the report noted that Gates did cooperate enough to provide identification:  “Officer: Sir, I am just investigating a possible break-in of this residence.  I just needed to make sure that you are safe and that your neighbor was mistaken about the possible break-in. Are you sure that no one broke into the house and is hiding inside?  Sorry for the inconvenience.  Here is my name and badge number if you need to follow up.  Please have a nice day.”  Rather than attempt to diffuse the situation, it appears that the officer took umbrage at whatever Dr. Gates said to him or how Dr. Gates said it to him.  Apparently, annoying a police officer in Cambridge appears to be sufficient for some Cambridge police officers to arrest a person.  That may be the way it is, but it does not appear to be good policing.  Whether it is racialized policing is a different more complicated matter.

Rachel Maddow’s interview with Frank Schaeffer deserves wide spread dissemination and consideration.  Both Maddow and Schaeffer should be commended for their courage and insight.

“Rachel Maddow Show: Frank Schaeffer on How Hate Speech Leads to Violent Acts

By Heather Tuesday Jun 02, 2009 10:00am

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Rachel Maddow talks to author of Crazy for God Frank Schaeffer about the murder of Dr. George Tiller. Schaeffer apologized for his and his father’s role in contributing to the death of Dr. George Tiller in his article at The Huffington Post How I (and Other “Pro-Life” Leaders) Contributed to Dr. Tiller’s Murder. From the article:

In the late 1970s my evangelical pro-life leader father Francis Schaeffer and Dr. C. Everett Koop (who soon become Surgeon General in the Reagan administration) went on the road with me taking the documentary antiabortion film series I produced and directed ( Whatever Happened to the Human Race?) to the evangelical public. The series and companion book eventually brought millions of heretofore non-political evangelical Americans into the antiabortion crusade. We personally also got people like Jerry Falwell, Ronald Reagan and countless Republican leaders involved in the “issue.”

In the early 80s my father followed up with a book that sold over a million copies called A Christian Manifesto. In certain passages he advocated force if all other methods for rolling back the abortion ruling of Roe v. Wade failed. He compared America and its legalized abortion to Hitler’s Germany and said that whatever tactics would have been morally justified in removing Hitler would be justified in trying to stop abortion. I said the same thing in a book I wrote (A Time For Anger) that right wing evangelicals made into a best seller. For instance Dr. James Dobson (of the Focus On the Family radio show) gave away over 100,000 copies.

Like many writers of moral/political/religious theories my father and I would have been shocked that someone took us at our word, walked into a Lutheran Church and pulled the trigger on an abortionist. But even if the murderer never read Dad’s or my words we helped create the climate that made this murder likely to happen.

[....]

Angry speech has become the norm in American religion from both the right and the left. Words are spoken which — when taken seriously — lead directly to violence by the unhinged and/or the truly committed.

Schaeffer addressed the hateful rhetoric from those like Bill O’Reilly during the interview and O’Reilly’s unwillingness, unlike Schaeffer, to take responsibility for his words.

Schaeffer: And when you look at what happened to Dr. Tiller, there’s a direct line connecting the rhetoric that I was part of as a young man and this murder. And so people like me are responsible for what we said and what we did and the way we raised the temperature on this debate out of all bounds. And so when O’Reilly talks about the fact that these people of the far left are against Fox or against him or trying to muzzle debate, he’s telling a lie.

I am not a member of the far right. Until I voted for Barack Obama in the last election I was a lifelong Republican and I am still pro-life. I also believe abortion should be legal, but I agree with Barack Obama when he says we ought to find ways to help women, help children, give contraceptives, sex education to lessen the number of abortions. I think abortion is a tragedy. But I also think that pretending that you can call abortion murder and Tiller the baby killer, etc., etc., etc. and that these words don’t have an impact is crazy. So this is what helps unhinge a society, talking like that. And I apologize and I will apologize again. I am sorry for what I did.

I commend Frank Schaeffer for speaking out and bringing some sanity to the conversation and acknowledging how the right has hijacked the religious community for political gain, and just what the consequences of that political decision have been.”

Preventive detention is incarcerating someone considered too dangerous to be permitted walk freely in American society. Such an individual cannot be tried either because he or she has not committed a crime or because for one reason or other they cannot be convicted in a court of law. The reason for incarcerating such villains is to protect the innocent. This is clearly a noble and righteous goal that any responsible government should pursue. There’s only one problem. Indefinitely incarcerating someone whose not been convicted of a crime is anathema to American constitutionalism, fundamental American rights and values, and the rule of law.  It’s precisely the sort of practice that is arbitrary, tyrannical, and intolerable in any constitutional democracy worth the name. Moreover, it’s the sort of practice President Obama campaigned against. So can the president now be contemplating instituting a practice that was one of the central elements in the Bush administration’s lawless regime?  Consider Obama’s remarks from his May 21st speech:

I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again. Having said that, we must recognize that these detention policies cannot be unbounded. They can’t be based simply on what I or the executive branch decide alone. That’s why my administration has begun to reshape the standards that apply to ensure that they are in line with the rule of law. We must have clear, defensible, and lawful standards for those who fall into this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.

I know that creating such a system poses unique challenges. And other countries have grappled with this question; now, so must we. But I want to be very clear that our goal is to construct a legitimate legal framework for the remaining Guantanamo detainees that cannot be transferred. Our goal is not to avoid a legitimate legal framework. In our constitutional system, prolonged detention should not be the decision of any one man. If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so, going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution.

It’s difficult to see how any of these standards designed to create a system of prolonged (aka preventive) detention can conceivably comport with the rule of law. Perhaps the president has deluded himself into believing that it’s possible to construct “an appropriate legal regime” that enables us to transform preventive detention into a constitutionally permissible practice. But it can’t be done. No matter what “safeguards” are conscientiously put in place in such a legal regime when you put lipstick on a pig, to borrow from the campaign rhetoric used by both sides of the electoral contest, you still have a pig. All the clever contrivances designed to make preventive detention appear benign and consistent with the underlying reasons for launching the American republic in the first place will fail and with it the constitutionally grounded hope Obama had promised the American people.”Yes, we can” didn’t stand for “yes, we can violate the Constitution.” Did it?

A few weeks ago, I wrote about prosecutorial discretion and the torture memos.  No new information has been revealed about the memos.  However, former Vice President Dick Cheney has continued to talk about enhanced interrogation techniques (read torture) and the good information they supposedly produced.   Cheney continues to claim that waterboarding and similar troubling interrogation techniques do not amount to torture.  However, his defense of the techniques seems to suggest that even if they did amount to torture, they should have been authorized and used against the terrorists who were indeed subjected to the techniques.  His defense suggests a balancing process that comes out in favor of torture because there would be almost no argument against the use of such techniques if they were in fact legal, not torturous and did in fact produce information that stopped attacks on the United States and other countries, as Cheney has claimed.

This all ties into prosecutorial discretion in a controversial way.  This is because there may be room to consider Cheney’s comments in the process of deciding whether he or others ought to be prosecuted, if they have committed a crime related to authorizing enhanced interrogation techniques.   Some might complain that Cheney’s First Amendment rights would be put in jeopardy or that the government might attempt to prosecute Cheney merely to quiet him.  However, others would argue that Cheney’s continuing assertions that torture is not torture and his advocacy that torture continue to be used, even in the absence of clear evidence that it has produced actionable intelligence that directly saves lives, suggests that Cheney has no remorse or regrets regarding the use of torture.  Whether Cheney demonstrates acceptance that his actions were wrongful or illegal, assuming they were, arguably is quite relevant to whether the Department of Justice should prosecute him if it concludes that he has committed a crime.   At least, it should be as relevant as any information about a putative criminal that suggests that he has refused to realize the criminality of his behavior.  Indeed, a person who refuses to acknowledge the criminality of his behavior is almost certainly in need of the punishment and correction that the Bureau of Prisons is supposed to provide.

Check out Bob Herbert’s recent piece on gun violence.  Here’s a sample:

I remember writing from Chicago two years ago about the nearly three dozen public school youngsters who were shot to death in a variety of circumstances around the city over the course of just one school year. Arne Duncan, who was then the chief of the Chicago schools and is now the U.S. secretary of education, said to me at the time: “That’s more than a kid every two weeks. Think about that.”

Actually, that’s our problem. We don’t really think about it. If the crime is horrible enough, we’ll go through the motions of public anguish but we never really do anything about it. Americans are as blasé as can be about this relentless slaughter that keeps the culture soaked in blood.

This blasé attitude, this willful refusal to acknowledge the scope of the horror, leaves the gun nuts free to press their crazy case for more and more guns in ever more hands. They’re committed to keeping the killing easy, and we should be committed for not stopping them.

Whether by statute, constitutional interpretation, or constitutional amendment, when will Americans take gun violence seriously?

The discussion regarding what to do with the writers of the infamous torture memoranda continues to heat up.  With President Obama arguably switching his position with respect to whether those responsible for the torture policy and the legal memoranda behind it will be allowed to be prosecuted, the controversy will not end quickly.  This is just fine with a criminal law professor like me because it allows the public the opportunity to think about an issue that criminal law professors think about often, but that the public and the press rarely do:  prosecutorial discretion.

The decision to prosecute or not prosecute with respect to those who wrote the torture memoranda begins with two related questions.  The first revolves around whether criminal liability flows from the writing of the memoranda.  Criminal liability of some type must flow from the behavior before the issue of prosecutorial discretion arises.  The second question revolves around what the nature of the memo writers’ actions were.  At base, regardless of the technical statutory violations that could flow from the memo writing, the key question is whether the prosecutor will be seeking criminal charges essentially for the memo writers giving stunningly bad or ethically challenged or even morally bankrupt legal advice or for the memo writers being more generally complicit in encouraging torture to occur.   A decision to decline to prosecute what is merely horrible legal advice that can be interpreted to be a statutory violation is quite different than a decision to decline to prosecute clear complicity in torture that takes the form of providing legal advice that counsels and provides cover for torture.

Assuming that writing the memos constitutes a legal violation, prosecutors will, at a minimum, consider the following questions.  One, was the legal advice in the memos the extent of the memo writers’ involvement in the torture or was it merely the manifestation of their active participation in seeking to allow torture?  Two, were the memos merely the equivalent of providing transparent cover for what the Bush Administration was going to do anyway rather than the actual genesis or basis for allowing torture?  Three, would punishing the memo writers lead to better legal advice in the future for the President and other governmental actors?  Four, is punishment necessary?  The Obama Administration has a long way to go toward deciding whether it needs to or how to exercise prosecutorial discretion.  However, it should be clear that the exercise of discretion – assuming laws were broken – will be a blended legal-political decision rather than a pure legal decision.  In that vein, President Obama, rather than Attorney General Holder, arguably should make the final decision regarding prosecution.

According to recent reports: “The CIA waterboarded two al-Qaida terror suspects a total of 266 times, according to a report that suggests the use of the torture technique was much more extensive than previously thought.  . . .  The documents showed waterboarding was used 183 times on Khalid Sheikh Mohammed, who admitted planning the 9/11 attacks, the New York Times reported today.  . . . The US Justice Department memos released last Thursday showed that waterboarding, which the US now admits is torture, was used 83 times on the alleged al-Qaida senior commander Abu Zubaydah, the paper said. A former CIA officer claimed in 2007 that Zubaydah was subjected to the simulated drowning technique for only 35 seconds.  . . .  The numbers were removed from most of the memos over the weekend. But bloggers, including Marcy Wheeler from empytwheel, discovered that the figure had not been blanked out from one of the memos.  . . .  Barack Obama has banned waterboarding and overturned a Bush administration policy that it did not amount to torture.  . . . The president did not intend to prosecute Bush administration officials who devised the policies that led to such interrogations, his chief of staff, Rahm Emanuel, said yesterday.  . . .  Asked on Sunday about the fate of those officials, Emanuel told ABC’s This Week programme that Obama believed they ’should not be prosecuted either and that’s not the place that we go’.” To read more click here.

Fortunately, the President has had second thoughts about categorically ruling out investigations of crimes committed during the Bush-Cheney administration. Perhaps, someone close to the President alerted him to the fact that the United States has a legal duty to prosecute war crimes committed by its “leaders.” A hearty thanks to the stalwart soul brave enough to convince the President that his rhetoric about “looking forward” is quite irrelevant when one has a legal duty to take action of a certain sort, that is, when taking such action isn’t discretionary. And thanks to the President for exhibiting the good sense and strength of character to reconsider is initial erroneous position.

With the second anniversary of the Virginia Tech massacre coming up and with the current increase of gun deaths, I am reprising an article posted in April 2007 about the massacre.  It’s pertinent because we are again hearing the fallacious argument that arming the good guys will prevent or decrease gun deaths because armed good guys can take out the bad guy. Here’s the original post.

One week ago today, a lone student at Virginia Tech, wielding two pistols, went on a murderous rampage killing thirty-two students and teachers in the most deadly massacre in American history. This shocking blow to the serenity on college campuses has unnerved the American psyche setting off an furious scramble to discover whether this tragedy could have averted. The historical and social significance of the massacre may never be fully understood; yet, such events present a window into the American character: how do the cherished goals of liberty and responsibility bear on their problem of gun violence, how should Americans resolve their differences and just how should we respond to tragedy. Interminable arguments will follow about constitutional law, gun control, mental health, privacy, and what obligations universities have, acting in loco parentis, to their students’ security and their privacy.

One argument targets what it takes to be an obvious fact of social life. The only way of preventing armed criminals from wrecking mayhem and death, is to arm citizens. According to this argument, if the students (and teachers) were armed in Norris Hall, they would have been able to confront the shooter forcing him to desist or die. If armed criminals darken the quads and corridors of our universities, permitting armed students and faculty to protect themselves is a natural solution.

Because this commonsensical argument is attracting proponents, it must be taken seriously. Unfortunately, the argument presumes an over simplified understanding of social reality on college campuses and throughout the nation’s workplaces. It assumes that we can divide humankind into two groups exclusively: good guys and bad guys. The good guys, according to this argument, will use their guns appropriately in defense of themselves and others. Good guys properly store and maintain their guns minimizing the risk of accidental gun violence. When good guys bring their guns to town, the only result is to stop bad guys. By contrast, since criminals scoff at gun regulations and acquire guns illegally, gun free university campuses handicap the good guys and benefits the bad guys. Where’s the sense in that?

This argument overlooks the critical fact that tucked away inside the category of “good guys” are two sub-categories: super-good guys and ordinary good guys. Super-good guys never use guns except when necessary and take every precaution to minimize the injurious collateral effects of gun use. Ordinary good guys never intend to use their weapons inappropriately–that’s why they are called “good guy”–but sometimes they do. Ordinary good guys might kill in anger, or when mistakenly identifying someone as a threat, or by not carefully storing or maintaining their guns. Some good guys, consumed by depression, may even misuse their guns by taking out their anger on themselves.

If carrying guns were dangerous only because they enabled bad guys to kill good guys, then arming citizens might be a reasonable policy. The armed students in Norris Hall could have then used their guns to stop the maniacal shooter. Armed super-good guys always hit their target–the shooter–and never accidentally hit other super-good guys. But not all good guys are super-good guys. Hence, guns are also dangerous when ordinary good guys misuse them to kill other good guys. Elementary logic tells us that if students were armed, the number of innocents killed or wounded by guns would increase. Because good guys make mistakes, and because the lethality of these mistakes is so costly, arming students inevitably compounds the danger of mistakes by gun use.

The critical fallacy in the argument to arm students is simply that the argument is myopic. It focuses only on good guys using guns appropriately by defending themselves or others and ignores the more ordinary circumstances where ordinary good guys are likely to kill innocents. The question then is this: Will arming students cause more innocents to die than relying on law enforcement? Since guns kill much more readily than knives, chains, or glass, and since using a gun responsibly requires training that most people carrying guns will not received, the safe bet is that arming students will increase the number of innocents killed or wounded unnecessarily. In a world where good guys were always super-good guys, arming students makes sense. In world, such as ours, where super-good guys are in short supply, it does not.

The gun control controversy is replete with specious arguments on both sides. The real question remains: How many deaths due to gun violence will it take to push the ordinary good guy, opposing gun control, to say enough? Gun ownership and use is perfectly compatible with effective regulation. Why is this fairly obvious point so difficult to understand?