Monday, January 31, 2011

Update on the Repeal of the Death Penalty in Illinois

About three weeks ago, I mentioned that the Illinois General Assembly did something I never thought I’d live to see: Passed a bill repealing the death penalty in Illinois. The bill then went to Gov. Pat Quinn, a moderate Democrat and a Catholic who has indicated in the past that he supports the existing moratorium on the death penalty instituted by former Republican Gov. George Ryan. Gov. Quinn is not, however, opposed to the death penalty in principle.

At the time the General Assembly passed the repeal legislation, I said I had some confidence that Gov. Quinn would sign the bill into law. But so far he hasn’t done that. Under Illinois law, Gov. Quinn has 60 days from the date a bill is presented to him to sign it or veto it, in the latter case “by returning it with his objections to the house in which it originated”; if he takes no action within 60 days of presentation, it becomes law. Ill. Const., Art. IV § 9(b).

As the clock ticks, “Mr. Quinn and aides are asking various individuals for their take on the bill and abolition.” According to the Illinois Coalition to Abolish the Death Penalty, the Governor also “has said that he wants to hear from the people” of Illinois, and the Coalition is urging everyone who favors abolition to let their voices be heard. You can also sign the American Civil Liberties Union’s online petition to Gov. Quinn here.

Meanwhile, Gov. Quinn’s running mate in the last election, Lt. Gov. Sheila Simon (daughter of the late Illinois Sen. Paul Simon), sent the Governor a letter last week urging him to sign the repeal bill. Ms. Simon’s letter reads, in part:

Even in the best of circumstances, our system allows for error. We try criminal cases to a standard of “beyond a reasonable doubt.” It is a higher standard than the burden in civil cases, but it is not “beyond all doubt.” Our system links an irrevocable punishment to a standard where jurors could have some nagging questions about the defendant’s guilt. The results demand pause. Since 1977, 20 people sentenced to death in Illinois have been freed because they were found innocent or the cases against them collapsed.

…. [O]ur criminal justice system, even when operated in the best of circumstances, is subject to flaws. As a matter of public respect for our justice system, we cannot tolerate error in execution. As a former prosecutor and your Lt. Governor, I urge you to end the death penalty in Illinois.

However, one group that has been disappointingly quiet about abolition of the death penalty is the Catholic Church in Illinois. EWTN News – which bills itself as the “Global Catholic Network” – reports that “[a]s Catholic groups campaign to end the death penalty in states around the U.S., focus has zoomed in on Illinois, which recently passed anti-death penalty legislation that is waiting to be signed into law by state Governor Pat Quinn,” but there appears to be precious little action on the ground here. The Catholic Conference of Illinois has issued a statement urging Gov. Quinn to sign the repeal bill (predictably tying it to abortion (.pdf file)), and the Archdiocese of Chicago (by far the largest diocese in Illinois, and one of the largest in the United States) has a link to the Catholic Conference of Illinois’ statement on the Archdiocese homepage, but that’s about it. Chicago’s Archbishop, Francis Cardinal George, who just last November made it his business to publicly denounce legislation creating civil unions in Illinois, has not, so far as I can tell, issued any statement urging Gov. Quinn to sign the death penalty repeal bill. If your Googling skills are better than mine, please let me know – but I’ve searched for any public statement by Cardinal George supporting the repeal bill and I’ve come up with nothing.

Finally, there’s this odd twist in the controversy over Illinois’ repeal of the death penalty:

[Gov. Quinn] even got whacked Monday by a DuPage County [Illinois] judge, a Republican, who said it was “grossly irresponsible” to be dithering.

The judge is John J. Kinsella, a former prosecutor involved in the shameful prosecution of Rolando Cruz in the 1983 rape-murder of 10-year-old Jeanine Nicarico. He was chief prosecutor in Mr. Cruz’s third trial, when the defendant was finally acquitted long after having been wrongly convicted and stuck on death row.

Judge Kinsella was not emitting what some would call “a cry from the heart” over merits of the death penalty. He was just saying that the uncertainty over the death penalty was clouding the murder trial of an Addison man scheduled for his courtroom and that he wished the governor would fish or cut bait.

Since I practice in DuPage County, I’ll refrain from discussing Judge Kineslla’s comments, other than to say this: One cannot overstate how ironic it is that a former prosecutor involved in one of the most notoriously botched death penalty cases in Illinois history would say anything about the subject, let alone criticize the Governor for agonizing over the decision whether to sign the bill. Chicago Tribune columnist Eric Zorn has all the background you need to understand that particular travesty of justice here, and you can find the individual columns he wrote about the Nicarico case here.

In any event, pressure is mounting on Gov. Quinn to make a decision with regard to the repeal legislation, but he has yet to indicate which way he is leaning. I think Gov. Quinn is a good man, but it is disheartening, to say the least, that we do not know if he will sign the repeal bill. Having said that, I think this is just the kind of moment that was made for Pat Quinn. He’s been an outsider all his political life; he’s a reformer, a genuinely moral and ethical guy, and he’s never been one to act on the basis of political expediency.

More than anything you’ve ever done in your estimable political career, Gov. Quinn, this is your legacy. Do what you know is right, and bring our state into the light of civilization.

© 2011 David P. von Ebers. All rights reserved.

Sunday, January 30, 2011

On the Air Again with Tim Corrimal and Friends – Episode 153

Episode 153 of the Tim Corrimal Show is now posted. At the start of today’s show, Tim interviewed Canadian author and environmental activist Lillian Brummet, who, along with her husband Dave Brummet, are authors of the Trash Talk series of books (among many other projects). Their website is here. The Brummets also host the Conscious Discussions podcast three days a week, on Tuesdays, Thursdays and Sundays.

After Tim’s interview with Lillian, our panel, comprised of past guests Kim (@tickle_b on Twitter) of the Tickle Me Blue blog, and Joe (@Marnus3 on Twitter), along with new guest T Cheney (@tresec29 on Twitter), reviewed Pres. Obama’s State of the Union address, the “official” GOP response from Rep. Paul Ryan (R-WI), and Rep. Michele Bachmann’s (R-MN) “Tea Party” response.

By the way, on the show Tim mentioned Kristen Wiig’s hilarious takeoff on Rep. Bachmann’s Tea Party response on last night’s episode of Saturday Night Live. Our good friend GottaLaff at The Political Carnival has the video here. I’m not much of an SNL fan these days, but this is good stuff. Thanks for posting that, Laffy.

With regard to the State of the Union itself, earlier in the week I criticized Pres. Obama’s call for medical malpractice “reform,” and I stand by that criticism. However, as I indicated on the show today, for the most part I thought the State of the Union address was positive and forward thinking, whereas Rep. Ryan’s rebuttal was trite, negative and, um … sound bite-y.

As for Rep. Bachmann’s odd performance on CNN (where she looked not at CNN’s cameras but at a separate Tea Party Express camera off to the side), I agree with this comment by David Paulson on Technocrati Politics: “She didn’t deliver a response; it was nothing more than a rerun of the same fact-free Tea Party commercial we’ve all seen over and again, ad nauseam.” Truth.

But I have to acknowledge a slight mistake I made when we discussed Rep. Bachmann’s other odd speech last week – the one where she said “the very founders that wrote those documents [the Declaration of Independence and the Constitution] worked tirelessly until slavery was no more in the United States” – because I inadvertently mistook her reference to John Quincy Adams for a reference to his father, John Adams. Among other things, Bachmann said “John Quincy Adams … would not rest until slavery was extinguished in the country.” John Quincy Adams, of course, was not a signatory to any of the founding documents – in fact, he did not serve in Congress until 1831, more than forty years after the Constitution was ratified which explains I initially thought Rep. Bachmann was referring to his father. However, I was right about one thing: John Quincy Adams died in 1848, nearly two decades before slavery was abolished in the United States through the ratification of the Thirteenth Amendment.

And one last comment about today’s show. I mentioned Rick Majerus, the former head coach of the University of Utah men’s basketball team (T is affiliated with that institution), and his opposition to the death penalty. I’d forgotten that Mr. Majerus left Utah and now works as the men’s basketball coach at St. Louis University. (By the way, what’s a Billiken?) Anyway, I’ve always loved Rick Majerus, but I had no idea just how awesome he really is. From a January 25, 2008 article in the New York Daily News about Majerus’ run in with St. Louis Archbishop Raymond Burke over Majerus’ liberal political views (St. Louis U. being a Jesuit university):

Majerus, 59, always has had a keen interest in politics. This could be in tribute to the work of his late father Ray and his 81-year-old mother Alyce, a daily communicant who was concerned her son might be excommunicated after this incident.

Although Ray did not have the benefit of being educated by the Jesuits like his son, there is no doubt he lived a life by the tenet they encourage - being a man for others. Ray Majerus became a union organizer in Milwaukee and later the secretary-treasurer of the UAW. He was not afraid to expose Rick to the picket lines for the famous Koehler, Wis., factory strike at the tender age of 7. Nor were his parents concerned when they let young Rick march in the deep South in places like Selma, Ala., with the Rev. James Groppi and Jesse Jackson when the civil rights movement was just starting to take root during the 1960s. His parents were even tear-gassed on one occasion. He campaigned with his father outside factory gates with Jimmy Carter and Walter Mondale in 1976, campaigned for Kerry in three states in 2004 and plans to fly to Utah, where he is a registered Democrat, to vote in November. He also has participated in death penalty protests outside prisons, building a liberal philosophy that is ingrained in him.

Good for you, Rick Majrus. I think I’ve just become a Billikens fan.

© 2011 David P. von Ebers. All rights reserved.

Saturday, January 29, 2011

Egypt 2011: Carter/Reagan Redux?

I’ve been hesitant to write about this week’s demonstrations in Egypt, because even after four days I can’t quite get a handle on what’s happening and what the likely outcome will be. I have, however, found Nick Bauman’s blog on to be quite helpful. It provides background information, links to a variety of helpful sources, plus a running updates from last Tuesday, January 25, to today. The most recent updates are at the bottom of the page, but it’s interesting to scroll through in chronological order to see how the situation has ebbed and flowed since the first massive demonstrations in Cairo on Tuesday. As I write this, the two latest updates are:

UPDATE 68, Saturday 6:52 p.m. EST (Siddhartha Mahanta): … [T]he chaos in Egypt is bubbling over into Gaza. Palestinians in Gaza get most of their fuel from the blackmarket, through a labyrinthine array of tunnels and pipes that link the strip with Egypt’s Sinai peninsula. The LA Times reports that gasoline smuggling into the Palestinian territories has been disrupted, inciting panic that the supply could dry up completely. Hamas officials are doing their best to assuage their concerns. But it’s done little to stanch the rush to the pumps.

UPDATE 69, Saturday 8:20 p.m. EST (Siddhartha Mahanta): Hamas’ interior ministry says that the border between the Gaza Strip and Egypt is under the control of Gaza security forces, reports Xinhua news service. Hamas also denies that Gazans have broken into Egyptian territories. But witnesses in the southern Gazan town of Rafah, near the Egyptian border, say they heard the sounds of explosions and gunfire on the Egyptian side of the borders. Xinhua also reports that Palestinian-run news agency Wafa says that Palestinian President Mahmoud Abbas telephoned his Egyptian counterpart Hosni Mubarak, affirming his government’s interests in keeping Egypt stable.

Another indispensable resource: University of Michigan Middle East expert Prof. Juan Cole, whose blog, Informed Consent, always provides the most reliable analysis of events in that region. In his latest post, Prof. Cole discusses a recent Al Jazeera interview with Dr. Ahmed Zewail, a potential successor to current Egyptian Pres. Hosni Mubarak, and Dr. Zewail’s aspirations for bringing real democratic change to the country.

As an aside, I mentioned this on Twitter and I think it’s really true: One of the biggest mistakes Americans made after the September 11, 2001 attacks was to shun Al Jazeera as a legitimate news source. After the attacks, most Americans, fed by a heavy stream of anti-Islamic paranoia from all quarters, assumed that Al Jazeera was hopelessly biased in favor of Arab and Muslim interests – and, presumably, against U.S. interests – like an Islamic version of the Soviet-era TASS news agency. In fact, Al Jazeera has proven itself to be at least as reliable as most western news agencies (and probably quite a bit more reliable that a certain (ahem) right-leaning American network); and, perhaps more importantly, has access to events in the Middle East that western news agencies just don’t have. The current crisis in Egypt has proven this beyond any doubt.

But, anyway, it’s safe to say at this juncture none of us has any clear idea what will happen in Egypt, whether the uprising will be successful at all, and if so, what form of government will replace Mubarak’s dictatorship. On the other hand, given the woefully anti-democratic regime that currently runs the country (as Nick Bauman points out, “Egypt is ranked 138th of 167 countries on The Economist’s Democracy index, a widely accepted measure of political freedom”), it’s hard not to see these mass anti-government demonstrations as a force for good.

My biggest fear with the Egyptian crisis is that the United States will repeat the mistakes it made in the late 1970s and early 1980s when popular uprisings brought down tyrants in places like Cambodia, Iran and Nicaragua, only to have the United States reflexively back the ousted dictators and turn its back on the people of those countries. Recall that the Carter administration gave its tacit support to Pol Pot in Cambodia after Vietnam invaded in 1978 to throw him out of office, Pol Pot’s genocide being too much even for the Communist Vietnamese regime. Pres. Reagan, of course, doubled down on America’s covert support for Pol Pot, leading to years of civil war there. Likewise, in the nascent stages of the 1979 Iranian revolution, Pres. Carter supported the Shah despite his horrific record of human rights abuses. It’s quite possible, even likely, that our continuing to support the murderous Shah, and our corresponding refusal to seek out the moderate, pro-democratic elements within the Iranian revolution, helped to radicalize the anti-Shah movement and made it that much easier for Islamic extremists to co-opt it for their own purposes.

Finally, the 1979 revolution in Nicaragua evolved out of a broad-based movement that included business interests, trade unions, newspapers (including conservative newspapers), leaders of the Catholic Church and others, all of whom came together in an effort to jettison the corrupt regime of Anastasio Somoza and establish democracy. Even after the Sandinistas took over in the summer of 1979, their primary goals were to rebuild the country and establish democratic institutions. But while Pres. Carter reluctantly tried to work with the new government, Pres. Reagan promptly reversed course, taking a hard line stance against the revolution that led, predictably, to the radicalization of the Sandinistas – who, in the absence of U.S. support, turned to the Soviet Union for help.

So, this is my fear: That the U.S. will move too quickly to judge the evolving revolution in Egypt and will recoil out of fear that it may contain, like virtually any popular revolution in similar circumstances, less palatable elements among the wide variety of interests demanding change. Already we’re hearing this from the usual suspects on the right. From Think Progress:

[D]uring an interview with right-wing radio host Mark Levine today, [former U.S. Ambassador to the U.N. John] Bolton used his time on the show to attack and undermine the pro-democracy protest movement currently underway in Egypt. The former U.N. ambassador claimed that the “real alternative” to the Mubarak government is not “Jeffersonian democracy” but rather the opposition Muslim Brotherhood. After Levine postulated that “every Jihadi nutjob is probably pouring into Egypt right now,” Bolton followed up by saying this is the “big opportunity” for jihadists and mocked the calls of the international community to restore internet services, saying that the “Muslim Brotherhood knows how to use Twitter just like naive college students do.”

Yes. Because there might theoretically be some radical elements within the broad-based anti-Mubarak movement, we should just assume that the worst will come of it, and we should therefore go back to supporting the brutal dictator there out of fear – or, worse, out of craven self-interest.

Same as it ever was.

But there is some hope. Marc Lynch of Foreign Policy magazine suggests that the Obama administration is pursuing the correct, albeit cautious, approach to the Egyptian crisis, saying this of Pres. Obama’s official comments yesterday:

This is not the language of capitulation to Mubarak’s empty promises of reform. It’s a pretty sharp challenge to him to demonstrate serious change immediately, which in no way commits to backing Mubarak if he fails to do so. And comments made by various administration officials suggest that they don’t really expect him to be able to deliver. This blunt conditionality has to be understood in tandem with White House Spokesman Robert Gibbs’ carefully chosen words that U.S. economic and military aid to Egypt would now be reviewed -- a direct, almost unprecedented form of pressure on Egypt for which many democracy activists have clamored for years to no avail.

I hope this means that Pres. Obama, unlike Pres. Carter and Pres. Reagan before him, isn’t rushing to judgment in Egypt. I tend to think that Pres. Obama will take a rational, analytical approach to this revolution – if in fact it is a revolution – and once it’s clear that Mubarak is on the way out, will seek out moderate, pro-democratic forces within the movement, ultimately supporting and encouraging those forces to rise to the top. The worst response, it seems to me, is to think Mubarak, as the devil we know, is necessarily preferable to whatever government free and fair elections might lead to, if true democracy is given a chance there.

That’s the kind of mistake we’ve made entirely too many times in the past. I don’t think we can afford to make it again.

© 2011 David P. von Ebers. All rights reserved.

Friday, January 28, 2011

Bonus Clash Song – Know Your Rights … All Three of ’Em

Seems fitting, given what’s happening in Egypt right now:

This is a public service announcement

With guitar …

Know your rights, all three of them

Number 1

You have the right not to be killed

Murder is a CRIME!

Unless it was done

By a policeman or an aristocrat

Know your rights!

And Number 2

You have the right to food money

Providing of course you

Don’t mind a little

Investigation, humiliation

And if you cross your fingers


Know your rights

These are your rights …

Number 3

You have the right to free

Speech as long as you’re not

Dumb enough to actually try it

Know your rights

These are your rights

All three of ’em

It has been suggested

In some quarters that this is not enough

Well –

Get off the streets!

Get off the streets …

Not much more to add until we know how the situation in Egypt shakes out.

(This is live version of “Know Your Rights,” the studio version of which was on the 1982 LP Combat Rock, which was the last album the band recorded with Mick Jones.)

Your Friday Clash Song: The City Casts a Shadow of the Perfect Crime …

There’s no theme here, it’s just one of my all time favorites: “Gates of the West,” originally on the Cost of Living EP (1979). From The Clash Wiki:

The Cost Of Living EP is an EP released by The Clash on election day 1979, as Margaret Thatcher's government took power in the UK. Originally it was planned for the front cover artwork to feature Margaret Thatcher’s face superimposed over a swastika, but this was vetoed by Mick Jones (“I don’t want no politicians on the front of my records”), and the final soap powder box inspired artwork was created instead by [bassist] Paul [Simonon] and [guitarist/songwriter/singer] Joe [Strummer].

So, yeah, they weren’t altogether shy about their left-leaning political views, even if they didn’t “want no politicians” on their record covers. This song, though, isn’t about politics politics so much as it’s about music politics, like much of their early music, and their concerns about the compromises they had to make to get ahead in the music business and what those compromises will do to them.

But I have a confession: I like this song just because I like it. It’s just one of those turn-it-up-loud Clash songs from their early years. And there’s nothing wrong with that.

So I’m standing at the gates of the west

I burn money at the lights of the sign

The city casts a shadow

Of the perfect crime

I’m standing at the gates of the west,

I take my pulse and the pulse of my friend,

The city casts a shadow

Will I see you again?

For you Clash aficionados, “Gates of the West” also was the B-Side of the “Groovy Times” single. Which is another great song I may have to feature one of these weeks.

Happy Friday, everybody.

© 2011 David P. von Ebers. All rights reserved.

Thursday, January 27, 2011

Weird Coincidences

I had all but forgotten that this happened on January 28, 1986:

Twenty-five years ago, an event occurred that is seared into the memory of most Americans: About a minute after liftoff, the space shuttle Challenger blew apart, killing all aboard, including teacher-astronaut Christa McAuliffe.

The day started off innocently enough. It was unusually cold in Florida that day, but NASA managers decided to attempt a launch anyway. As a subsequent investigation made clear, the cold temperature made O-rings, which were intended to contain hot gases, fail on the solid rocket boosters.

Which is not to say I forgot the incident itself; it remains one of the most vivid memories I have – not altogether unlike the memory of September 11, 2001 because of the immediacy of the tragedy and the fact that it happened in broad daylight on live television.

I didn’t actually see the explosion live. At the time, I was in my second year of law school at the University of Illinois in Urbana-Champaign, and that morning I must have had a class at 10:00 a.m. Central Time, which would’ve ended at 10:50 a.m. Challenger lifted off from the Kennedy Space Center in Florida at 11:38 a.m. Eastern (10:38 a.m. Central), and the explosion occurred 73 seconds later. As I recall it (and memory, I’ve found, isn’t always 100% accurate), shortly after my 10:00 class ended I went to the student lounge in the basement of the law school building – so, that would’ve been around 10:55 a.m. – and I saw a dozen or so of my classmates sitting in stunned silence, watching a replay of the liftoff on television. No one was speaking, and as I came into the lounge the TV showed the sequence of events from liftoff through the explosion, with limited commentary (you know that calm but uneasy voice they use on TV when they know something really awful’s happened, but they don’t know exactly what it was), and I thought for a moment I was seeing it happen live.

What an eerie feeling that was: Watching the Space Shuttle take off, get smaller as it ascended … and then suddenly there was an enormous fireball in the sky, with what looked like contrails heading off at weird angles. To an untrained eye, it wasn’t immediately apparent what exploded; but it soon became obvious that all of it exploded – the booster rockets, the Shuttle itself – there didn’t appear to be anything left intact. And as that realization sank in, it dawned on all of us that we’d just seen seven people die before our very eyes. It wasn’t gory, obviously; we didn’t see the astronauts themselves. But it didn’t really matter; we all knew exactly what we’d just seen.

It’s weird, because I’d grown up in with fairly graphic images of the Vietnam war on the television on a fairly regular basis. You may recall that in the 1960s and early 1970s, journalists still believed that it was important for Americans to see what was happening in our name halfway around the globe, even (especially) if it was unsettling. But (and I’m speaking only for myself here), the Challenger disaster was on an altogether different order of magnitude: It was direct, immediate, live. Even seeing it on tape a few moments after it actually occurred, it had the sense of horrific immediacy – like it just happened right there; like you could practically reach out and touch it.

I never had that sensation again until the morning of the 9/11 attacks, where, again, I didn’t see the live coverage of the second plane hitting the World Trade Center (thank God for having a small kids; and thank God for our local PBS station that kept the cartoons going that morning). But I did see both towers fall, live on TV, and experienced again that godawful, horrific, immediate sense of witnessing untold numbers of people die right before us.

But, so, here’s the thing. Until today, when I read about the 25th anniversary of the Challenger explosion, I’d completely forgotten about this weird coincidence (and here I mean “coincidence” in the literal sense of two disparate events occurring very close in time): Less than 48 hours before the Challenger explosion, on January 26, 1986, the Chicago Bears won their first, and so far only, Super Bowl, crushing the New England Patriots 46 to 10 in Super Bowl XX in New Orleans. Obviously, a sports franchise winning a championship (even if it’s the Chicago Bears, far and away the team I have the most affection for) is utterly inconsequential in comparison to the kind of tragedy that occurred at the Kennedy Space Center two days later. It would be flat-out obscene to suggest that the Bears’ Super Bowl victory even registers on the scale of importance that measures real life and death occurrences like the Challenger disaster.

Yet as inconsequential as it may have been in a grand-scheme-of-things kind of way, the Bears’ 1986 Super Bowl win is another extremely vivid memory for me. In fact, I remember nearly every game of that season; and I especially remember, in fairly extensive detail, each of the two playoff victories leading up to Super Bowl XX. More than that, I remember – being a long suffering Cubs and Illini fan – the absolute certainty with which I contemplated the inevitable Bears loss that morning, an outlook so unrealistically pessimistic that I must’ve been one of only a dozen or so people on the planet who imagined that New England could’ve beaten the Bears. And, of course, I remember feeling this inane, practically delirious joy as the game progressed and it became obvious that nobody, least of all the New England Patriots, stood a chance in holy hell against these Chicago Bears.

Anyway, here’s the thing. As distinct as each of these memories is, from the meaningless but unbridled joy of watching my all time favorite sports franchise win what seemed to me to be an extraordinarily unlikely championship to the horror and sadness of watching the Challenger explode and kill seven fairly incredible human beings – as distinct and frankly powerful as each of those memories is, I had completely forgotten that they occurred within two days of each other. It’s as if over time your brain can somehow separate them entirely from one another, like the two things occurred in parallel universes, so that in your memory the sadness of one never bleeds over into the joy of the other, and vice versa.

Or, maybe that’s just me; but I’m glad for it. Because I wouldn’t want to forget either event, nor would I want either memory to lose its own distinct quality of giddiness and elation, or of sadness and horror … because that’s kind of how life is. Nobody’s life is made up of only the good things that happen to them, and nobody’s life is made up of only the bad. You’ve really got to know both, to feel both, to know you’re living.

© 2011 David P. von Ebers. All rights reserved.

Wednesday, January 26, 2011

State of the Union: Nobody’s Perfect

On Monday I wrote about the Wikileaks controversy and the conditions of Pfc. Bradley Manning’s confinement. Despite criticizing the government (and, implicitly, the Obama administration) and agreeing with Glenn Greenwald (one of the administration’s harshest critics on the left), I was accused of, among other things, “reflexively defending” Pres. Obama. Note to self: Next time you agree with Glenn Greenwald, try to agree harder.


So I wonder what I’ll be accused of when I criticize Pres. Obama this time. Let’s see what happens …

Now, to people who aren’t in the legal field, this may seem like picking nits; but really, it’s not. Listening to last night’s State of the Union address, the following comment by Pres. Obama struck me as, well, wrong:

The health insurance law we passed last year will slow these rising costs, which is part of the reason that nonpartisan economists have said that repealing the health care law would add a quarter of a trillion dollars to our deficit. Still, I’m willing to look at other ideas to bring down costs, including one that Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits.

Yeah, that’s right. I said it. The President is wrong to support “medical malpractice reform,” and he’s wrong to suggest that it will “bring down [health care] costs.”

As to the latter point, there’s little debate that proposed medical malpractice “reform” would hardly scratch the surface of the federal budget deficit. In October 2009, the Congressional Budget Office estimated that capping damages in medical malpractice suits would save the federal treasury a whopping $54 billion over ten years, and would reduce the overall cost of health care by 0.5%. When you consider that the federal budget deficit for 2011 alone is projected to reach $1.5 trillion, saving $54 billion over ten years is essentially meaningless. And when you consider that last December’s tax cut compromise added an estimated $4o00 billion to the 2011 deficit – or nearly 7½ times the projected savings from malpractice “reform” over ten years – that $54 billion really is meaningless.

So, no, “medical malpractice reform to rein in frivolous lawsuits” will not “bring down [health care] costs,” as the President said last night. Not in any meaningful way.

But aside from the cost issue, there’s another fundamental reason why the President is wrong to support malpractice “reform” – it’s basically unconstitutional. Or if it’s not, it’s skating on some very thin constitutional ice.

First of all, negligence (and that’s what medical malpractice is: a species of professional negligence) is a creature of state, not federal, law. Add to that the fact that the states, not the federal government, are primarily responsible for testing, licensing and disciplining doctors and other health care providers within their borders, and its plain to see that the federal government’s role in dictating the outcome of medical malpractice cases is and ought to be (you’ll pardon the expression) negligible.

But let’s assume, for the sake of discussion, that Congress’ medical malpractice reform would only apply to cases brought in federal court. There is, as it turns out, a narrow category of malpractice cases that can be brought in federal court because, although malpractice claims arise under state law, the federal courts “have original jurisdiction of all civil actions where the matter in controversy exceeds the sum of $75,000, exclusive of costs, and is between … citizens of different states.” 28 U.S.C. § 1332(a)(1). So, if you are injured by a doctor or hospital in another state, you could sue them in federal court in their state under federal “diversity jurisdiction.” But the percentage of medical malpractice cases filed in federal court is small in relation to the aggregate number of malpractice cases overall; and, more importantly, as to cases filed in federal court there’s this problem:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

That’s the little known Seventh Amendment to the U.S. Constitution, and it guarantees litigants in federal court the right to a jury trial in “common law” cases like negligence, including medical malpractice. Meaning that if a medical malpractice case is brought in federal court under diversity jurisdiction, the plaintiff has the right to a trial by jury.

So, what does that mean for malpractice “reform”? Well, the function of a jury is to determine the facts of the case; to apply the law, as set out in the court’s jury instructions, to those facts; and then to render a verdict based upon the application of the law to the facts. And if the jury renders a verdict for the plaintiff, its job – the jury’s job – is to determine the amount of damages that will reasonably compensate the plaintiff for the injury he or she suffered. And so, it seems to me, Congress cannot simply enact a statute that circumscribes a federal jury’s power to award damages as it sees fit without violating the Seventh Amendment’s guarantee of the right to trial by jury, because that’s the bread and butter of what juries do.

Which does not mean that a jury’s award of damages cannot be challenged or limited. Judges have the inherent authority to reduce jury awards that “shock the conscience” or bear no reasonable relation to the actual injury suffered by the plaintiff. See, e.g., Norfolk Beverage Co., Inc. v. Kwang Ja Cho, No. 990528 (Va. Sup. Ct. March 3, 2000), slip. op. at pp. 8-9 (.pdf file), quoting Smithey v. Sinclair Refining Co., 203 Va. 142, 146, 122 S.E.2d 872, 875-76 (1961):

“[I] f it appears that the verdict is so excessive as to shock the conscience of the court and to create the impression that the jury has been influenced by passion, corruption or prejudice, or has misconceived or misunderstood the facts or the law, or if the award is so out of proportion to the injuries suffered to suggest that it is not the product of a fair and impartial decision, then it becomes the plain duty of the judge, acting within his legal authority, to correct the injustice.”

See also Jackson v. Magnolia Brokerage Co., 742 F.2d 1305 (11th Cir. 1984) (discussing the “shocks the conscience” standard for judicial review of a federal jury verdict). Moreover, in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment prohibits “grossly excessive or arbitrary” punitive damage awards. But the point is, there is no authority that I’m aware of that enables Congress to override the Seventh Amendment by limiting a federal jury’s power to award what it thinks are appropriate damages in any common law case, including medical malpractice cases.

Unlike most of the provisions of the Bill of Rights, however, the Seventh Amendment does not apply to the states. Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211 (1916). So, does that mean that Congress could enact a statute imposing limits on verdicts rendered by juries in state court cases involving medical malpractice? Well, no, because every state in the union has its own constitutional guarantee of the right to jury trials in common law cases brought in their own courts, and Congress cannot simply override not only state negligence laws but state constitutional rights with a stroke of a pen. In other words, Congress cannot simply enact a law that purports to dictate what state juries can award in state law cases brought in state courts, where those states’ constitutions guarantee the right to trial by jury.

What Congress could do, I suppose, is exercise its authority under the Supremacy Clause and, in effect, usurp the entire field of medical malpractice law, much like it did when it enacted the Employee Retirement Income Security Act of 1974 (“ERISA”). Without going into excruciating detail, ERISA establishes the rules for, among other things, the establishment of employer-sponsored health insurance plans, and in so doing Congress preempted state laws governing lawsuits against insurance companies for denials of health insurance claims. So, if you have health insurance through your employer under ERISA, and your health insurer denies a claim you submit to it, you cannot sue under your state’s law – you can only sue under ERISA.

But that type of preemption, while constitutional, ordinarily occurs when Congress establishes a comprehensive regulatory scheme that essentially occupies the entirety of a particular area of the law. So if Congress wants to take over medical malpractice law in its entirety – to override the existing malpractice laws of all 50 states – it can do so, and in the process it can set limits on the amount of money a jury can award an injured plaintiff. That, however, involves a whole lot more than just putting limits on jury awards; and, more to the point, would trammel one of the few areas where federalism still exists and still makes sense in our legal system.

So, there it is: When the President says that he supports medical malpractice “reform,” he’s just plain wrong.

But as I’ve noted before, this is just a disagreement. It doesn’t mean the President has sold out, or stabbed me in the back, or that he’s “no better than Bush” as many of his liberal critics like to say. It’s just one are where he’s wrong – as compared to the many, many areas where he’s right.

That doesn’t stop me from saying he’s wrong when I’m pretty darned sure he’s wrong. It just means I’m not going to engage in hyperbole or pearl-clutching in the process.

© 2011 David P. von Ebers. All rights reserved.

Monday, January 24, 2011

Wikileaks, Bradley Manning and the Art of Missing the Point

I continue to scrupulously avoid discussing Wikileaks in any real detail here, primarily because the issues raised by the organization and what it does are fantastically complicated. But beyond the mere complications presented by what Wikileaks does, I avoid the topic because I find that, overwhelmingly, both the supporters and critics of the organization are missing a larger fundamental issue. We exhaust thousands and thousands of column inches and untold gigabytes of data trying either to demonize or canonize Wikileaks’ founder, Julian Assange, and the organization itself, to the point where we simply don’t care about the real underlying issue: Namely, how we go about classifying information in this country and whether that process has become dysfunctional.

When Wikileaks first began disclosing information that the U.S. government rather wished it hadn’t – and for many of us, our introduction to Wikileaks came via the horrific “Collateral Murder” video of U.S. troops firing on and killing twelve people, including two employees of Reuters, from a helicopter gunship in Iraq in 2007 – the ensuing discussion quickly devolved into a debate over Julian Assange’s status as a hero or a villain. What was lost in the conversation was whether the U.S. government had the right to withhold the information contained in the video some three years after the events depicted, long after the government had concluded its investigation into the matter. More importantly, in the months following the release of the “Collateral Murder” video, and with Wikileaks’ subsequent release of classified information regarding Afghanistan in July 2010 and its release of hundreds of thousands of U.S. Embassy cables in November 2010, most of our time and energy has been absorbed battling over Assange’s cult hero/villain status rather than engaging in a critically important conversation about how the government classifies information, who gets to make the determination that certain information should be classified, what standards are used in making that determination, and whether there is any meaningful review of those decisions or check on that decision-making authority.

And until we are willing to have that conversation, the question whether we should deify or crucify Julian Assange is of little interest to me.

And now, it seems to me, we’re doing the same thing when it comes to Pfc. Bradley Manning. Manning is the 22 year old soldier who was charged in July 2010 with (i) violating Army regulations prohibiting disclosure of classified information; and (ii) violating 18 U.S.C. § 793, which prohibits “delivering national defense information to an unauthorized source,” and 18 U.S.C. § 1030(a)(1) and (2), which prohibit “disclosing classified information concerning the national defense with reason to believe that the information could cause injury to the United States,” and “exceeding authorized computer access to obtain classified information.” Manning’s supporters, including Glenn Greenwald, point out that he has been held in jail for seven months (two in Kuwait and five in Quantico, Virginia) without having been tried on those charges, and that the conditions of his confinement have been harsh. Aside from the question whether the government has violated Manning’s Sixth Amendment right to a speedy trial (and Manning’s lawyer claims it has), Greenwald and others claim that holding Manning in solitary confinement for an extended period means that he is being held “under conditions that constitute cruel and inhumane treatment and, by the standards of many nations, even torture.”

Now, I take issue with many things Glenn Greenwald says lately, but as to the question whether indefinite solitary confinement approaches the level of torture or cruel and unusual punishment (and it’s worth noting that those two are not the same thing), I believe he may well have a point. Atul Gawande wrote an extended piece for the New Yorker in March 2009 in which he reviewed everything from studies conducted on Rhesus monkeys to the experiences of hostages and POWs held in isolation for extended periods of time (including Terry Anderson and John McCain, among others), and it’s fairly clear that the scientific research supports Greenwald’s general proposition:

A U.S. military study of almost a hundred and fifty naval aviators returned from imprisonment in Vietnam, many of whom were treated even worse than McCain, reported that they found social isolation to be as torturous and agonizing as any physical abuse they suffered.

And what happened to them was physical. EEG studies going back to the nineteen-sixties have shown diffuse slowing of brain waves in prisoners after a week or more of solitary confinement. In 1992, fifty-seven prisoners of war, released after an average of six months in detention camps in the former Yugoslavia, were examined using EEG-like tests. The recordings revealed brain abnormalities months afterward; the most severe were found in prisoners who had endured either head trauma sufficient to render them unconscious or, yes, solitary confinement. Without sustained social interaction, the human brain may become as impaired as one that has incurred a traumatic injury.

That’s pretty damning evidence. It suggests that solitary confinement does indeed border on torture or cruel and unusual punishment, and it raises serious concerns about Manning’s treatment and the reasons why he’s being held in solitary.

But the problem is, once again our entire discussion has become about personalities – instead of Assange, in this instance it’s Manning – rather than the substantive underlying issue. There are online petitions and Facebook pages decrying Manning’s treatment in captivity, there’s nearly constant activity on Twitter describing Manning as a hero and a political prisoner … all the while ignoring this (again, from Gawande’s New Yorker article):

The number of prisoners in these facilities has since risen to extraordinary levels. America now holds at least twenty-five thousand inmates in isolation in supermax prisons [i.e., prisons that are designed to hold prisoners in solitary confinement]. An additional fifty to eighty thousand are kept in restrictive segregation units, many of them in isolation, too, although the government does not release these figures. By 1999, the practice had grown to the point that Arizona, Colorado, Maine, Nebraska, Nevada, Rhode Island, and Virginia kept between five and eight per cent of their prison population in isolation, and, by 2003, New York had joined them as well. Mississippi alone held eighteen hundred prisoners in supermax—twelve per cent of its prisoners over all.

So, while it’s all well and good for liberal bloggers to be concerned about Bradley Manning’s solitary confinement, what good does it do to make a martyr of him if we’re going to ignore the more than 25,000 prisoners in U.S. prisons who are also being held in isolation, in most cases for far longer than Manning’s seven month stint? Which is not to minimize the issues involved in Manning’s case, but to say to Glenn Greenwald and others: Where have you been for the past couple of decades as the use of isolation and “supermax” prisons has literally exploded in the United States? And when are we going to have the real conversation that a case like Manning’s begs us to have – the conversation about whether the Constitution or simple human decency permits us to keep thousands (maybe tens of thousands) of men and women in solitary confinement, sometimes for years on end, in conditions that we know cause serious injury to the human mind, without giving it a second thought.

I’d sure like to have that conversation. In fact, that’s a conversation I’ve wanted to have since at least 1991, when, in the course of working on a prisoner civil rights case, I first became aware of the supermax prison concept. But as long as we use cases like Manning’s for no purpose other than, perhaps, to embarrass the current President, that’s a conversation I don’t think we’ll ever have.

© 2011 David P. von Ebers. All rights reserved.

Sunday, January 23, 2011

On the Air Again with Tim Corrimal and Friends – Episode 152

Episode 152 of the Tim Corrimal Show is now posted.

On this week’s show, Tim and I are joined by Nancy (@Nanmac3109 on Twitter) and Andy (@awienick on Twitter) to discuss the events of the week, including Keith Olbermann’s abrupt departure from MSNBC, and Rachel Maddow’s comments about it on Real Time With Bill Maher. We also spent a significant amount of time discussing the House vote on the repeal of the Affordable Care Act, a meaningless pantomime brought to you by Speaker John Boehner and the newly-minted Republican majority.

During the course of our discussion on the health care bill, I didn’t have time to mention this article on by Rick Ungar, which is getting quite a bit of attention on the left:

It turns out, the Founding Fathers would beg to disagree [that the individual mandate in the health care act is unconstitutional].

In July of 1798, Congress passed – and President John Adams signed - “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

Ungar explains:

The law did a number of fascinating things.

First, it created the Marine Hospital Service, a series of hospitals built and operated by the federal government to treat injured and ailing privately employed sailors. This government provided healthcare service was to be paid for by a mandatory tax on the maritime sailors (a little more than 1% of a sailor’s wages), the same to be withheld from a sailor’s pay and turned over to the government by the ship’s owner. The payment of this tax for health care was not optional. If a sailor wanted to work, he had to pay up.

The law was not only the first time the United States created a socialized medical program (The Marine Hospital Service) but was also the first to mandate that privately employed citizens be legally required to make payments to pay for health care services.

And, as Ungar says, the passage of the Relief of Sick and Disabled Seamen Act by the 5th Congress in 1798 provides some evidence that the individual mandate in the current health care act is consistent with the intent of the Constitution’s drafters, since many members of the 5th Congress “were drafters of the Constitution.”

But, a word of caution. It’s not necessarily true that the drafters of the Constitution, once they became legislators in the newly created Congress, always passed laws that were consistent with the Constitution that they had just drafted. Take, for example the Alien and Sedition Acts, also passed in 1798 and also signed into law by Pres. John Adams. In particular, one of the four acts – “An Act for the Punishment of Certain Crimes Against the United States,” otherwise known as the Sedition Act – provided, in Section 2:

That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or publishing, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

In other words, the same 5th Congress that passed the Relief of Sick and Disabled Seamen Act also passed an act making it a crime punishable by two years in prison to “write, print, utter or publish” anything that would “bring [the government] … into contempt or disrepute.” And despite the fact that many members of the 5th Congress were drafters of the original Constitution and Bill of Rights, there’s little doubt today that the Sedition Act would be held to violate the First Amendment. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (the U.S. has “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”)

Which is not to say that the passage of the Relief of Sick and Disabled Seamen Act in 1798 is irrelevant to the current debate over the constitutionality of the individual mandate. Not at all; in fact, it’s significant evidence that the framers of the Constitution did believe the federal government had the power to require private individuals to buy health insurance. But given the early Congress’ inconsistency when it came to honoring the Bill of Rights, the fact that it passed Relief of Sick and Disabled Seamen Act is far from conclusive on the matter.

© 2011 David P. von Ebers. All rights reserved.