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Tuesday, June 30, 2009

Death be not proud

A month ago I noted a news item about an American soldier who was spared the death penalty by a Kentucky jury for the rape murders of Iraqi civilians.

Today, a related article caught my attention. Five American soldiers were convicted of executing four Iraqi men who had been detained after weapons were found where the men had been hiding. The members of the squad lined up the detainees and shot them. They confessed that the killings were in retaliation for the killing of two American soldiers from their unit.

The soldiers were sentenced to life WITH the possibility of parole. After receiving many supporting letters from relatives and neighbors of the soldiers, "a brigadier general" reduced the sentence of one of the soldiers to "20 years with parole eligibility after 7 years." A clemency board may reduce it yet further if it finds mitigation based on combat stresss and facts showing that he was "following the lead of" higher ranking officers.

In a non-related story in the same issue, California death penalty opponents are reportedly urging that commuting current death verdicts to life without parole would save $1 billion. There are currently 682 death row inmates.

Saturday, June 27, 2009

Borenstein's Law Strikes Again

When I began to blog at the urging of my son, one of my first posts (Intro to Borenstein’s Law, originally posted 6/20/2005) was an attempt to answer a question that haunts all criminal defense lawyers: why our clients act so irrationally in a way that seems so stupid, so contrary to their best interests.

I gave many examples, like leaving a wallet at the scene of the crime ... and then reporting it stolen. I now have a case that ranks close to the top. My client, after being questioned by police and jailed, called his girlfriend. During the call he made incriminating statements, despite a loudly intrusive recording that blared every 60 seconds that warned speakers that such calls are monitored and taped.

In my post, I noted that people - not just our clients - act contrary to their best interests so often that it can be called the norm, not an aberration. In fact, supposedly smart people - like Bill Clinton and Dick Nixon - commit reckless acts that satisfy immediate urges without considering the consequences. The drive for sex, money, power and other elemental desires often overwhelms caution, reason, or religious teachings - uh, abusing priests, q.e.d.

Today’s L.A. Times contains an article that confirms my thesis. Discussing South Carolina Mark Sanford’s revelations, the article notes:

"Experts have all kinds of theories about why otherwise intelligent men -- and it's almost always men -- behave so recklessly. Sex and power are inextricably intertwined, as Henry Kissinger famously noted, and some politicians have a hard time reining in the urge for either. ‘If you're one of these Master of the Universe kind of guys, you get to a place where you feel that the rules don't apply to you,’ said Pepper Schwartz, a University of
Washington sociologist who specializes in relationships.

"Frank Farley, a Temple University psychologist, even coined a term -- the ‘Type T personality’ -- to describe politicians' predilection for philandering. The "T" stands for thrill-seeker, which describes the kind of person drawn to a career that, by its nature, requires a willingness to step out of ordinary life and take risks."‘It's not a 9-to-5 job,’ said Farley, a former president of the merican Psychological Assn. who has extensively studied politicians' behavior. ‘It has very high levels of uncertainty, variety, novelty, challenge, unpredictability -- and therefore it attracts a certain kind of person.’ The positive side of that risk-taking is a willingness to expose oneself to that most public of examinations: an election campaign. The downside, Farley said, is relenting to personal urges, like drugs, alcohol or an extramarital dalliance.
"‘It's almost built into their personalities,’ he said of many officeholders. ‘Put it together with the opportunities they have, and we should not be shocked when we see it happening.’ "Why the risk? ‘It's hard to understand this if you have not been in passionate love, and it's particularly intense when it's star-crossed,’ Schwartz said. ‘You are pumping adrenaline, testosterone and dopamine -- it's a drug cocktail; you are
intoxicated. And you know what kind of decision we make when we are intoxicated.’"

Friday, June 19, 2009

The Midnight Sun

Once upon a time in the land of the midnight sun, a nearsighted woman was raped by two men. She identified a man as one of them and he was sentenced to prison. Now, with the aid of the Innocence Project, he wants his DNA compared with fluids donated by the rapist to prove his innocence, asserting his willingness to pay for the tests himself so the state will have no financial excuse.

Many states have fashioned procedures for such post conviction testing. Alaska is not one of them. Their high court denied his request in 2001. Now the U.S. Supreme Court has issued a 5-4 opinion upholding the denial. Chief Justice Roberts wrote for the majority. He could find no provision in the Constitution that mentioned the right to a DNA test. As an example of the philosophy of judicial restraint, he suggested that this was an issue that state legislatures are better able to address. He was joined by Alito, Thomas, Scalia, and Kennedy (the so-called swing vote).

Justice Stevens dissented, finding it outrageous that a man must serve a life sentence when there is a means of proving or disproving his guilt which is available, cheap, and certain. And, oh yeah, isn’t there a provision called the 14th Amendment which guarantees "due process"? He was joined by Ginsberg, Breyer and Souter, who filed as separate dissenting opinion - differing from the other dissenters in the issue of how broad a "right" should be.

The case presents a fairly clear example of what is at stake in the selection of Supreme Court justices. The trenches are deep and apparent: judicial restraint vs. judicial activism. The issue: is there a court of last resort when an injustice is ignored by legislatures and state courts?

To be clear, before trial, an accused has a recognized right to access of the evidence to test it. That right was recognized long ago by the same Supreme Court (in Brady v. Maryland). Also, during post-conviction habeas corpus proceeding, most states and federal courts authorize appointment of experts for DNA testing. State rules about these processes vary greatly - most impose nearly insurmountable obstacles to overturn convictions.

The fact is that the legal system is psychologically defensive about admitting its possible errors. The tradition and bias is to favor closure over certainty. Conservative jurists wax eloquently about the need for finality in the system. Public opinion generally concurs - how many times have you heard the media decry the "endless appeals" by prisoners alleging "technicalities" and using "legal tricks" to overturn convictions?

In the 90's, Congress passed legislation (with President Clinton’s support) limiting access to habeas corpus post-convictions appeals. We are now living with the effects of that misguided law. To date, more than 200 guilty verdicts have been proven by DNA evidence to have been wrong. Many of those innocent people had been condemned to death or life sentences.

Tuesday, June 16, 2009

News: Death penalty not a deterrent

The death penalty is not a deterrent to crime, according to the vast majority (88%) of criminologists, according to a survey published by Northwestern University School of Law's Journal of Criminal Law and Criminology.

This comes as no surprise to anyone familiar with the precepts of Borenstein's Law. Since most criminals do not think far enough ahead to anticipate the consequences of their crimes, they cannot be deterred from committing them. To qualify for the penalty, the law doesn't even distinguish between people who kill intentionally, recklessly, negligently or accidentally during while committing other felonies.

The law often uses concepts like "the reasonable person", foreseeability, "natural and probable consequences" and other general notions related to the traditional requirements of culpable mental states. These legal fictions impute to human beings rational thought processes that rarely apply in real life and death situations.

The typical homicidal person is an impulsive risk taker whose anticipation of results extends only to the immediate goal of revenge, hatred, fear, lust, rage, escape, or greed.

When "use a gun, go to prison" was implemented, not one potential robber declined the chance to rob because of the inevitable punishment awaiting. Nor did any robber decide to rob without using a gun for the very logical reason that robberies are easier to complete when a gun is used.

Of course, as prison sentences for robbers became pervasive and lengthy, the prisons began to fill. Subsequent laws imposing prison sentences for a wide variety for felons - including small time drug users and dealers, petty thieves with felon histories - filled the prisons to bursting. These laws did deter these people from committing crimes, at least while they were incarcerated. In that sense, such laws did deter, but at enormous cost and in the least efficient way a civilized nation could imagine.

Those who argue for death as a deterrent to future crime are right in arguing that the person executed will not commit another crime, but the same could be said of a life prisoner. Jurors get this idea. When given a choice of life without parole, juries rarely impose death sentences.

The deterrence argument is complicated by the proven fact that predictions of future dangerousness, whether made by criminologists, sociologists, psychiatrists, police officers, prosecutors, judges, prison officials, or parole boards, are totally unreliable. Long term studies have shown that such predictions are no better than those made by a coin toss.

Nonetheless, our society makes policy in this area without regard to the facts. Influenced by anecdotal cases of recidivist horrors reported by media and vengeance seeking victims advocate groups, the law is made from the same motivations as those that impel the killers it targets: revenge, hatred, fear, rage - certainly not the acts of the "reasonable person".

Tuesday, June 09, 2009

Adventures of a Principled Centrist

Like many of my peers in the late 1960's, I entered a law career with a radicalized illusion that I could shake up The Establishment from within. But early in my career as a public defender, I became persuaded that idealists made lousy lawyers. Viewing a case as "a cause" led to ineffective advocacy for the individuals who were our clients. Railing against "the system" was a losing strategy; tweaking it to make it work led to some success. To work from within demanded adherence to core principles - like those expressed in the Bill of Rights, but also a rational sense of moderation. Seeing the flaws of radical ideologies of Left and Right, I came to think of myself as a principled centrist.

The flaw of this philosophy is that it can easily lead to indecision, timidity, and a loss of confidence. Weak compromises are tempting when the risks are great. Uncertainty leads to failure and depression.

Barack Obama, by education and inclination, is a principled centrist. His legal education, which suited his innate propensities, prepared him well for effective advocacy. The first attribute of the lawyerly approach is the ability to see all sides of a question. The second is the exercise of judgments based on reason and evidence rather than faith and ideology.
The term itself is an oxymoron in presidential politics. The centrist is wedded to no firm ideology that huge numbers of people can identify with. It is historically rare to satisfy enough of the people enough of the time from the middle of the road.

The centrist is not an ideologue, except to moderation. Idealogues have a rigid vision, a religious faith in their righteousness. Moderation and consensus are lukewarm ideals. Neither notion stirs passion.

Ronald Reagan’s simple ideology allowed him to be certain and clear about every issue: lower taxes, secure defense, less government, American domination of foreign affairs, strict Christian morality and adherence to normative lifestyles. A centrist cannot be sure about any of these things, is sometimes for some of them, against some at some other times. He is a relativist - his motto must be "It depends." His survival depends on compromise.

A principled centrist in American politics is, by definition, in trouble. First, he states his principles, then is forced to compromise them. Bill Clinton’s adventure with the health care issue in the 1990's is a cautionary tale. He stated a principle: universal coverage. Eventually, he had to temporize, and was seen as weak, the inevitable risk of centrists. The result: his leadership coinage dissipated. He could not fall back on the moral leverage of ideology, had no constant constituency on left or right.

Obama has advantages Clinton never had. Times have changed. In 1993, Clinton’s "mandate for change" was tenuous at best. G.H.W. Bush had alienated a chunk of the Reagan coalition - the middle right - with higher taxes and a weak economy. Because Clinton was a "new" Democrat, based on a sensible, more conservative model, who shied from liberal doctrine, he was positioned as non-threatening. On the left, he was pictured as youthful, a JFK disciple, compassionate, with a feminist wife - a guy of the sixties, who had matured to moderate progressivism. Many "boomers" could identify with that beause they had moved that way as well.

The two-faced picture was enough to gain him a slim plurality in a three way race. Perot's candidacy made it clear that the only consensus in the public mind was that government was distrusted, and that the majority of voters were slightly to the right of center. But that is where the consensus ended.

There was no singleness of mind in the public for where it wanted a president to go. There was no mandate for any particular change. Clinton thought it was there for health care reform, fooled by the fact that he spoke about it in his speeches and he was elected. But the public was never fully committed to it, and was easily swayed by fears of expense and bureaucratic incompetence. In this as in every other issue the people wanted reform, but didn’t want to pay for it: crime, the economy, services, campaign reform. The public was schizophrenic: apathetic and impatient at the same time.

When the Republicans reclaimed the Congress in 1994 with a severe ideological conservative agenda, it forced Clinton the centrist to waffle to the right. The lesson was clear: a centrist may only succeed as a progressive leader if the public is ready to be led and only then by a leader who is perceived as a hero without baggage.

The commentators of the time blamed Clinton for a lack of leadership. The great leader defines the issues and unifies the people behind him. That Clinton failed to do. What he was forced to do is what a centrist does best: react to the extremes of left and right. He must be the captain of a sailing ship, tacking left and right but steering the middle. Clinton’s political acumen was such that he was able to survive well enough to be re-elected and, despite his tragic personal flaws, his presidency is now remembered as a time of peace and prosperity.

Obama’s advantage is that the crises caused by the failure of G.W. Bush’s failure, which is ascribed rightly to the flaw of rigid ideological governance, have forced public opinion to coalesce into a coherent consensus for change - not necessarily "radical" change, but at least, meaningful reform.

The last time that happened was in 1964, when L.B.J. took advantage of his opponent’s extreme conservatism, to form a strong coalition for social change. He succeeded in passing meaningful civil rights reform and programs that began a "war on poverty", only to self-immolate over Viet-Nam.

F.D.R. is probably the better model for Obama. F.D.R. was (and still is) perceived as a decisive leader because his motto was "do anything, but do something". He was able to take chances because the public of the time was willing to be led - almost anywhere. The times were that bad. His one principle was that government had to put people back to work. Everything he proposed, supported, persuaded, was directed toward that goal. He had many detractors from the left and right, but he had such a convincing presence to a people desperate for charismatic leadership that he prevailed and is revered as a great leader. He formed his consensus from huge chunks of the public: union members (in a time of solidly unified, active and powerful unions), Southern poor, the unemployed (25% unemployment in the depths of the depression) and the educated un-rich.

The Obama constituency is similarly broad: the educated and hopeful young, aspiring Hispanics and proud African-Americans, depressed boomers. Like F.D.R., he benefits from a bankrupt and disillusioned opposition party.

The fatal flaw of ideological and faith based governance is that when exposed as false by incontrovertible evidence it collapses. The strength of principled centrism is that its flexibility and foundation of moderation and reliance on evidence permit fine-tuning alterations without conceding defeat.

In the view of many historians, FDR’s policies failed to end the Depression because they were not radical enough. His centrism was a flaw, led to inconsistent contradictory policies. He wavered from his initial policy of governmental activism, caving to budget balancing contraction of spending, overly fearful of the political consequences of huge deficits. He was saved by the war which reinvigorated the broad consensus and commitment to action.

Obama, the principled centrist, walks the dangerous tightrope, his only net is his legal background.