Friday, December 2, 2016

The Media Needs To Wake The Fuck Up

Now is the time to counter lies with facts, repeatedly and unflaggingly, while also proclaiming the greatest truths:  of our equal humanity, of decency, of compassion.  Every precious ideal must be reiterated, every obvious argument must be made, because an ugly idea left unchallenged begins to turn the color of normal.  It does not have to be like this.  Chimamanda Ngozi Adichie, The New Yorker, Dec. 2, 2016.
The frustration, grief and horror that gnaw at me incessantly since the election is exacerbated by the sense that, as a Trump surrogate said, “there’s no such thing, unfortunately, anymore as facts.”  We are, indeed, traveling to another dimension, folks, one that, as Rod Serling would put it, is "a dimension not only of sight and sound, but of mind."  But the media is failing to grasp that we are in a dangerous twilight zone between light and shadow.  Alarmingly, it is normalizing what is not normal.  It has quickly adapted to the new fact-free reality by reverting back to the failed dynamic that got us here in the first place -- both sides do it, compartmentalizing, and prizing compromise as a worthy end in itself.  

This is captured perfectly in Anderson Cooper's recent interview of  Elizabeth Warren, when he asked her if she was willing to work with the Trump administration.  Warren replied that it would depend on the road the administration takes:  "if they engage in Islamophobia, racism, and other forms of hatred, then I will not support that."  Cooper responded, "Okay putting the hate stuff aside, you mean you won't do an infrastructure bill?"

"Putting the hate stuff aside"?  That is like asking opponents of Mussolini, "putting the fascist stuff aside, you mean you won't support his efforts to get the trains to move on time?" 

We should not be compartmentalizing Trump's erratic tweet storms, his assaults on the Bill of Rights, his nativist, anti-semitic, racist, anti-Islam enabling and rhetoric, his failure to provide his tax returns, his myriad conflicts of interest and self-dealing, his irresponsible lies, his failure to accept intelligence briefings and his casually dangerous interactions with foreign leaders.   It is all of one piece -- the building blocks for the creation of a cult of personality that poses a grave threat to our democracy.

But, ok, let's put aside the hate stuff and talk about that infrastructure proposal. It is not an infrastructure bill in the traditional sense of government funding of projects that will create jobs and spur the economy.  It is an attempt to privatize infrastructure building -- a tax giveaway to corporations with unfettered opportunities for corruption and profit.  And since Trump still refuses to disclose his business entanglements and tax returns, it cannot be known whether he and his family will benefit from such a bill.  None of this was revealed in a recent NPR interview with a leading Democrat.  The interviewer instead posed a typical both sides do it proposition:  since Republicans were successful in obstructing Obama's infrastructure bill, which paid off for them politically, would Democrats do the same or would they try to work with Trump.  But the situations aren't remotely the same.  Republicans opposed everything Obama for the good of the Republicans; i.e., even if -- or especially if -- Obama's policies would bolster the economy they should be opposed because they would redound to Democrats and hurt the GOP.  Democrats now, however, are -- or fucking should be -- opposing Trump for the good of the country.  

But according to what poses as common media wisdom, it would be irresponsible for Democrats to refuse to seek common cause with Trump and his fellow Republicans, and fail to move towards the ever-shifting center.  The pathetic master at false equivalence, David Brooks, looks for what he describes as the space “between the alt-right and the alt-left, between Trumpian authoritarianism and Sanders socialism.”  For Brooks, this space is inhabited by the likes of neo-con Bill Kristol.  For him and other pundits and commentators, no matter how far to the right the Republicans go, Democrats need to meet them halfway.  The mainstream, even after the last eight years of a moderate Democratic president and an obstructionist right wing opposition, stubbornly refuse to accept that one of the two major political parties in this country cares about governing and the other has been co-opted by a lunatic fringe -- a fringe that is about to control all three branches of government.

Rick Perlstein muses on a thought experiment: 
Imagine you are a commentator in Weimar Germany. A dynamic new political party comes on the scene. They pursue their goals via means that are, shall we say, extra-parliamentary. Their leader’s book promises that he alone can fix the nation’s problems. And that the fault lies not in ourselves, but in our resident aliens.  At what point, I wanted to ask, would you consider it your moral duty to break from the settled routines of “fairness” and “objectivity”—gotta hear both sides!—to inform your audience that what was going on was not normal?
This might have seemed outlandish before the advent of Donald Trump but now the questions it raises are alarmingly relevant.

James Fallows provides critical guidance for how the media "should cope with a man who will literally have life and death power over much of humanity [who] seems not to understand or care about the difference between truth and lies."  (1) Journalists need to call out lies as lies, not couch them as “controversies"; (2) they need to fight for reality itself by giving up on high-minded objectivity even if it will incur Trump's wrath and limit access to the Trump White House; (3) they need to understand that Trump's behavior is narcissistic and manipulative and learn how to effectively deal with such behaviors, which must include refusing to take what Trump says at face value.

Every time the media gives Trump a free pass, every time it acquiesces in spite of his untruths, every time it allows him to create and control a false narrative, he and his supporters get stronger and bolder and more dangerous.  It is already happening every day, and he hasn't even been inaugurated yet.

Wednesday, November 30, 2016

Needed: The Audacity Of A Lame Duck

Barack Obama seems to view his role in the last weeks of his presidency as that of enabler-in-chief -- to ensure the transition to the new administration will be as smooth and as peaceful as possible.  He deeply believes in the efficacy of our democratic institutions and seems to assume that traditional checks, balances and the norms of governance will constrain President-Elect Trump's more dangerous impulses.  Further, being the extraordinarily decent human being that he is, Obama wants to help the next president to succeed -- notwithstanding that the next president is a woefully ignorant, emotionally unstable, conflict-ridden, racially insensitive, anti-immigrant demagogue. 

There are times for decency and there are times for fighting indecency.  The notion that it is premature and overly alarmist to confront the grave threat Trump poses to democracy and the Constitution is frighteningly na├»ve.  Given what has already transpired since the election -- his courting of racists and right wing extremists for major executive branch posts, his intemperate and mendacious late night tweet storms, and his unabated financial self-dealing -- it is clear that Donald Trump is exactly the nightmare we knew he would be.  Doing anything that would help him succeed would only succeed in giving him more power and making him more effective -- and, therefore, more dangerous.

Once Trump assumes power, Senate and House Democrats should fight, resist and oppose everything he does. (See How to Respond to the End of Normalcy)  They should continue to press for investigations of Trump's business entanglements and unethical conduct, and, as Rep. Elijah Cummings and Sen. Elizabeth Warren have done, press the Government Accountability Office to review Trump's "chaotic" transition and conflicts of interest.  But between now and the inauguration, unless the recounts in three states disclose something explosive enough to undermine the legitimacy of the election, it is largely up to Obama to mitigate some of the disastrous effects of the transition even as a so-called lame duck and even if it would go against his preternatural faith in the power of our governmental norms and in the humanity and good will of others -- including, apparently, Donald Trump. 

The Bully Pulpit

President Obama remains enormously popular and well-respected.  Addressing some of the most fraught aspects of a Trump Presidency would greatly influence the national discourse going forward.  Obama thus needs to condemn the rise of white nationalism, nativism and anti-Muslim bigotry that Trump has encouraged, and denounce Trump's more overtly racist moves, including his appointment of Stephen Bannon as chief strategist and nomination of Jeff Sessions for Attorney General. 

He should also speak out against Trump's mingling of business interests with the country's business.  Obama should explain to the American people why what is good for the Trump Organization is not what is good for the Nation.  He should warn that Trump's blithe refusal to sell his assets and put them in a blind trust is unacceptable.  He should point out that ceding responsibility to his children still permits him to use his office to enrich his family -- and that Trump's highly questionable actions to date -- from including his children on the transition team, to asking foreign leaders for favorable treatment with regard to his businesses, to encouraging diplomats to stay at his hotels -- reflect a remarkable insensitivity to the appearance of conflicts of interest that will -- and should -- undermine every policy position of Trump's presidency. 

Special Counsel

Obama should request that the Attorney General appoint a Special Counsel to investigate Trump's business dealings in Russia and determine what communication and coordination there was between the Trump campaign and the Russians prior to the election.  We know that the Russian government claims to have met with Trump campaign officials prior to the election and that Trump's son reportedly met with Russian diplomats.  There have been reports of a Trump email server connected to Russia and other suspicious circumstances suggesting an inappropriate, perhaps treasonous, Trump-Putin connection.  A rigorous, independent investigation is essential.

While he is at it, Obama should also request appointment of a Special Counsel to investigate the machinations of FBI Director James Comey and other FBI personnel and whether their statements and leaks were purposefully designed to influence the election -- and whether they were in communication with the Trump campaign. 

Recess Appointments

Obama can also strike back at unprecedented Republican obstruction designed to allow Trump to fill what was previously Justice Scalia's seat on the Supreme Court as well as the many vacancies throughout the federal judiciary.  President Obama nominated a Republican-approved and highly respected jurist, Merrick Garland, in May 2016, after Scalia left the building.  The Senate nevertheless abdicated its advise and consent role by refusing to hold hearings or vote on his nomination -- or even meet with the man.  Such rank partisan gamesmanship violated any reasonable interpretation of logic, history and traditional norms.  At the same time, the Republican-controlled Senate also blocked the nominations of dozens of qualified judges to fill the lower federal courts, creating what has been termed a judicial emergency. 

Obama has the power to use recess appointments under Article II, Section 2 of the Constitution.  This power has been used by other presidents to fill federal vacancies and was used by President Eisenhower to put William Brennan on the Supreme Court.  Obama can appoint Judge Garland to the Supreme Court and other federal court nominees to the federal district and appellate courts when Congress adjourns on January 3.  While the appointments would only last until the end of 2017, unless the Senate approves them, this would at least slow down Trump's frightening remaking of the federal judiciary.  Besides, who knows what the state of Trump's presidency would look like then?  And, importantly, such recess appointments would also show Republicans that Obama and his Party are not going to meekly accept the untenable Republican position that the third ostensibly co-equal judicial branch of government belongs to them. 

Can Obama take these actions?  Yes he can.  Will he have the audacity to do so?  Unlikely, but that means we have to use our collective voices to demand that he do so. 

Thursday, November 17, 2016

How To Respond To The End Of Normalcy

Never more in my lifetime have we needed strong, aggressive, innovative, strategic leadership from the Democratic Party and the progressive movement that fuels it. Donald Trump will be no ordinary President. Rather than helping him protect the country, we must protect the country from the new President. This is uncharted territory.  -- Rep. Ruben Gallego (D-Ariz)
There has been a lot written lately -- far too belatedly -- about the normalizing of the utter outrageousness of Donald Trump's ascendance to the presidency.  Let's start with the now undisputed fact that the Russian government interfered with the election, as the NSA director stated, by directing "the recent compromises of e-mails from US persons and institutions, including from US political organizations."  How this isn't getting more traction from the media than Hillary Clinton's use of an un-hacked email server is baffling.  Add the tantalizing story that the Russian government was in direct contact with the Trump campaign prior to the election and Trump's refusal to disclose his financial relationships with Russian officials, banks and oligarchs, and we have a scandal that truly could be more explosive than Watergate.  It is not even a front page story.

With Trump's failure to release his tax returns or provide details of his myriad business holdings here and abroad, the potential for conflict of interest is beyond anything ever contemplated by an incoming president.  Jimmy Carter put his peanut farm in a blind trust.  Trump's solution, to allow his children -- who are playing key roles in the transition -- to handle his business affairs -- would be laughable if not so dangerously unethical.

Then there's Trump's selection of Steve Bannon as chief strategist -- a man who is not merely a divisive outsider as much of the mainstream press is portraying him.  Bannon is a white nationalist who has admittedly given a "platform" to the racist, nativist, anti-Islam, anti-Semitic and misogynist voices of the alt-right. 

Beyond the normalizing of Trump by the press, what is most disturbing is the response from our leaders in the opposition party, which for the most part has been cringe-worthy, treating this as they would any normal transition of power -- with polite words, well wishes, and calls for cooperation and accommodation.  Quite a contrast from how the Republican Party responded to Obama's election -- with unprecedented obstruction to every policy proposal and breaking with the basic norms of governance by attempting to shut down the government, holding the debt ceiling limits hostage and, most extraordinarily, refusing to advise and consent on a Supreme Court nomination.

Democrats, having learned nothing from the last eight years, appear to be scrambling to find common cause with the president-elect on select issues, according to an article in the New York Times, such as infrastructure spending -- which, all of a sudden, Republicans agree is necessary to create jobs and spur the economy.  This would be infuriating in normal times.  But these are not normal times.

Harry Reid, the outgoing minority leader of the Senate, has been on fire lately in his criticism of Trump, most recently in demanding that he rescind the appointment of Steve Bannon, who he referred to as a "champion of white supremacists":  “As long as a champion of racial division is a step away from the Oval Office, it will be impossible to take Trump’s efforts to heal the nation seriously.”  Other Democratic Senators have condemned Bannon, and 169 Democrats in the House sent a letter asking Trump to reconsider Bannon's appointment. 

But a Harry Reid rant and a strongly-worded letter is not enough.  Democrats must refuse to work with Trump and his Party until he gets rid of Bannon, provides his tax returns, discloses his Russian connections and resolves his business holdings in an ethical manner.  This should not be negotiable. 

The Democratic leadership needs to follow the lead of Arizona Congressman Ruben Gallego, who made the case for opposition not accommodation on the House floor.  He noted his obligation and that of his colleagues "to tell the truth about Donald Trump" and to not "treat him like any other politician, or even like any other Republican, because he is not."
He represents something much more dangerous. And while none of us want this to be the case, we have a duty to treat him like the threat he is – a threat to our values, a threat to our people, and a threat to our national identity
Gallego went on to describe Trump -- accurately -- as a sexual predator, a demagogue, a bigot, a liar, and a con-artist.  He noted how "millions of Americans are living in fear because he has threatened them. Muslims, Latinos, African-Americans, women, the disabled, the LGBT community, and more."  And he persuasively argued that Democrats in Congress "must oppose his agenda. We must oppose his efforts to build up his power. Anything that makes Trump more powerful, makes him more dangerous."

Gallego expressed his alarm that "senior leaders from both the progressive and centrist wings of the party" stated their "openness to working with Donald Trump on infrastructure."  But, as Gallego understands, "Donald Trump is not an ordinary politician. He is a con-artist. He has refused to give the American people reason to believe that he is not in this to enrich himself. In fact, he has bucked tradition by maintaining his family's interest in a private corporation.  And, unfortunately, his infrastructure plan is really a privatization scheme, rife with graft and corruption, whose real purpose is to enrich the Trump family and his supporters. He is not reaching out. He is reaching his hand into America's pockets, just as he has his whole career. And we must not let him do it."

Representative Gallego is absolutely right -- Congress "cannot afford to give him the benefit of the doubt. We must not lift a finger to help him scam our country. We must instead put every effort into stopping him."

Wednesday, November 9, 2016

Five Stages Of Trump

In On Death & Dying, Elizabeth Kubler-Ross identified five stages of grief, typically described as: (1) shock or denial; (2) anger; (3) guilt; (4) depression; and (5) acceptance.  I'm quickly working my way through them.

Last night was surreal.  Like so many, I had spent the last several weeks endlessly studying the electoral college map, religiously reading FiveThirtyEight and other pollster websites, and making repeated calculations on the New York Times Upshot website.  I was heartened by clicking on sites that gave Clinton a 75% or 85% or 95% chance to win and believing they had some true meaning until they didn't.   If I never hear the terms "paths to victory" and "firewall" and "battleground states" again it will be too soon.  I knew Clinton's many paths by heart and understood how few Trump had.  Fine, Trump can have Florida and North Carolina and Ohio.  It didn't matter as long as Clinton's firewall held up.  But Pennsylvania was still too close to call and other states fell that were thought to be safe.  As the great philosopher Vizzini once said:  "Inconceivable!"

I woke up this morning pissed off.   The fucking media that equated the concatenation of Trump's malfeasance with the misguided but hardly criminal use of a private mail address; that so lowered the bar for one candidate who could lie with impunity and speak in word salad as long as he didn't say something completely bat shit crazy; and that failed to ask a single question in any of the debates about climate change.  Fucking James Comey who single-handedly shifted the momentum and re-energized Trump's candidacy at a time it was flailing.  The fucking craven Republicans who failed to stand up to the most dangerously unqualified candidate in modern times.  Fucking Jill Stein and Gary Johnson and those who voted for them, whose moral purity blinded them to the enormous difference between the two major party candidates.  The fucking Clinton campaign for failing to figure out with all their fucking data analytics the states they needed to shore up and for not understanding and pushing back on the way the fucking email nonsense was being exploited.  The fucking electoral college -- first Bush and now Trump have won the presidency despite losing the popular vote.  The fucking angry white men who could not vote for a woman or accept the fact that America does not belong to them.

The guilt is starting to creep in. Not that my opinion would have changed anything but I was so sure that Clinton was best positioned to be the Democratic candidate.  As much as I loved and admired Bernie Sanders, I was so sure that he could not have turned out people of color as Clinton could and that once the GOP attack machine turned on him, he would have been swift-boated faster than you could say "socialist Jew."  But I'm starting to realize, way too late, that maybe he could have appealed to some of the disaffected electorate that Trump tapped into.  Maybe.

That's about as far as I've gotten.  Depression is sure to sink in any moment. 

And then stage five -- but that is where I'm going to part from Kubler-Ross.  There is no way to find peace and acceptance in a Trump Presidency, a Republican Congress and a right wing Supreme Court.  We have to fight back -- not move to fucking Canada. 

Inauguration Day is January 20, 2017.  We have until then to work through our grief.  Then it's time to get busy.

Monday, November 7, 2016

Last Call For Undecideds

You Maniacs! You blew it up! Ah, damn you! God damn you all to hell!  -- Planet of the Apes
Here's a thought experiment for all you undecideds, Hillary-haters and Bernie-or-Busters out there.  The Trump campaign just floated the possibility of a Trump Administration that would include Rudy Giuliani as Attorney General and Newt Gingrich as Secretary of State.  Let that sink in for a minute. 

Then think about a Supreme Court that, as a New York Times editorial aptly summarized in an editorial this morning:  "would promote a worldview where fewer people have rights, where women do not have reproductive choices, where lawmakers can make it harder for minorities to vote, where religious people are free to disregard laws protecting people they don’t like. Such a court could use a severe interpretation of the Constitution to ensure that American politics can be flooded with unlimited money, that reasonable gun restrictions are struck down, that corporate interests prevail over those of consumers, and that basic environmental regulations are turned back."

Then think about the end of any attempt to combat climate change and the pursuit of policies that would actually exacerbate global warming.

Then think about having a president who is a hero to the alt-right, consolidating racist, nativist and anti-Semitic furor, a president with no understanding of history, of policy or of the Constitution, and  president who will be unfettered by checks or balances either because he will blithely ignore them or his Party will control Congress.

Now, imagine this has all transpired and write a letter to your children, your grandchildren, and/or other loved ones from the depths of Trumpland explaining why you didn't vote or why you voted for Jill Stein or Gary Johnson. How would that go?

See also The Folly Of Voting For A Third-Party Candidate When One Of The Other Two Is Donald Trump

Friday, November 4, 2016

Stop The Spread Of Trumpland

Let's put aside that the Republican candidate for president does not believe in climate change and will seek to enact policies to exacerbate global warming.  And that he is a misogynist and a sexual predator.  And that he is a racist, anti-immigrant, anti-Islam demagogue who has given voice to the most deplorable -- yes, deplorable -- elements of American society.  And that his campaign manager is an unapologetic key figure in the alt-right movement.  And that his election would ensure a right wing Supreme Court for generations. 

Let's not bring up the fact that he is the first president in modern history to not release his tax returns.  That he has failed to disclose the countless business entanglements he has here and abroad that would create massive conflicts of interest.  That he has defrauded countless people and is currently battling dozens of lawsuits, including three based on credible allegations that Trump University is nothing but a scam.  And that his denial of any connection with a notorious mobster turned out to be a lie as recently uncovered video has shown.

What we need to be talking about now is that there are rogue elements in the FBI, perhaps including the director himself, that are trying to throw the election to the Republican candidate by leaking information to his henchman, Rudy Giuliani, and spreading false rumors.  "The FBI is Trumpland,” according to one agent, and they are trying to turn the USA into Trumpland.  And we need to be talking about the Russian government's involvement in trying to influence the election in favor of the same candidate -- a candidate who has refused to honestly account for his entanglements with Russian businesses and oligarchs, not to mention Putin himself.  Even given the bat-shit crazy nature of this election cycle where far too much bad craziness has been normalized, this is not normal.  As one clever tweet put it, this is the first time in history that the FBI, KGB and KKK all supported the same candidate.

As far as we know various national security agencies have been investigating Russia's actions and Trump's Russian ties although nothing will come of this before the election.  In addition, the Justice Department Inspector General needs to investigate the leaks at the FBI and the conduct of its director as some Democrats have recently called for.  Obviously, such an inquiry cannot be resolved before the election either.

What can be done now is that the President of the United States can get on the National Tee Vee, not as a surrogate for Hillary Clinton, but as the Commander-in-Chief and Leader of the Free World, to warn the American people of this dire threat to Democracy.  He needs to make sure those going to the polls understand what is happening and what is at stake.  He needs to call for a rigorous investigation and condemn the actions of government officials for using the power of their positions to try to sway a presidential election. He needs to explain that Donald Trump is seeking to exploit this unprecedented conduct.

As Adam Gopnik said six months ago, "if Trump came to power, there is a decent chance that the American experiment would be over."  That would be even more certain if how he came to power was through what is starting to feel like a coup. 

Monday, October 31, 2016

Requiem For California's Death Penalty

In 1989, I was a young lefty lawyer looking for a public interest law job.  I could have gravitated towards any number of areas but I somehow landed at a non-profit agency that was ground zero for challenging death sentences in California.  Little did I realize that it would become my life's work for the next quarter of a century.

It was exciting and energizing, and what made the work especially compelling was that every case touched on virtually every important social justice issue -- poverty, mental health, race, abuse of state power and constitutional rights.  And the clients were not stereotypical monsters as they are so often portrayed.  They were badly damaged people -- human beings -- who had endured unspeakable things and had done unspeakable things, but who were trying to hold on to a sense of humanity, even dignity, that seemed impossible given their dire circumstances as "condemned" men and women.

At that time there were probably a little over a hundred men and a couple of women on death row, and although there were plenty of cases wending their way dangerously to the end of the legal process, the possibility of executions in California seemed more hypothetical than real. 

Everything changed in 1992 when Robert Harris became the first of thirteen men to be executed in California. Robert was finally put to death in San Quentin's gas chamber after the U.S. Supreme Court lifted a Ninth Circuit stay of execution for the fourth and final time, with its cold, preemptive order stuttering out of the fax machine:  "No further stays of Robert Alton Harris's execution shall be entered by the Federal courts except upon order of this Court."

Robert's execution was an absolutely searing experience.  There was, of course, the human toll, the tortuous physical and emotional brutality that Robert suffered and the devastating impact on his loved ones.  For me, there was also the profound sense of helplessness in the face of the awesome power of the government that wanted -- needed -- its pound of flesh. Robert's execution ultimately wasn't about Robert or the righteous legal claims that should have led to granting him a new trial.  The longer his case dragged on the more ineffectual the government looked. California needed to demonstrate that it could carry out executions and it was going to have this one.  And it did.  

A year-and-a-half later David Mason was executed.  David had indicated that he did not want to challenge his death sentence and was then prodded into forfeiting his appeals by a lawyer who had many troubling issues of his own and exploited David's suicidal tendencies.  I will never forget the feeling of utter defeat when I was informed, as I worked on an 11th-hour legal challenge to David's case that would be filed in the event he changed his mind, that I should stop working; that he wasn't going to change his mind.  The state took David's life without seriously considering the fairness, indeed the legality of his death sentence.  

My client, Tom Thompson, was executed in 1998, the fifth California execution. As I have written about (at length), Tom was essentially executed on a legal technicality after a series of safeguards meant to ensure the reliability of death sentences all broke down.  (See, e.g., The Arbitrary Execution of Tom Thompson)  The state's overarching need for finality yet again trumped concerns for justice.

And I witnessed the execution of the sixth, Jay Siripongs, which took place about six months later, after agreeing to be an observer for his legal team

Having a client executed -- a man who you worked with for seven years, who you cared about and who cared about you -- a man who may have been innocent and who was killed because of the arbitrariness that plagued the judicial process rather than because his legal claims were meaningfully considered and fairly rejected -- is not something one gets over easily.  And then, having to witness another man's death -- watching an otherwise physically healthy 43-year old man strapped to a gurney and taking his last breaths after being injected with poison -- is not something one gets over ever.

Leaving the death chamber after Jay's execution, having dutifully followed the many rules laid down by prison officials for when to move, where to stand and how to act, I felt complicit.  I did what I was supposed to do  -- what I was asked to do by Jay's lawyers: dispassionately observe the proceedings to make sure that the execution was carried out according to protocol.  It was.  And it left me diminished by having taken part in such a ghastly process; tainted for being so closely involved in such a barbarous act.

But the work goes on.  For me, for another twenty years. 

Every now and then there was a legal victory -- or some positive shift in the process that was seized on as a victory --  or a spark of a connection with a client that made one feel that the work was still worthwhile.  But it was all too rare that the cases were decided on their actual merits.  Instead, years were spent litigating procedural issues to determine whether legal claims could even be considered at all.

I lost a case despite establishing that the trial lawyer was so debilitated by alcohol that he needed a time out before resuming his representation -- although when he did it was too late to investigate and present the powerfully sympathetic life history evidence that most likely would have persuaded the jury to vote to spare his client's life.  I won a case in which an African American juror who was holding out for a not guilty verdict was kicked off the jury for "failing to deliberate."  That one took 15 years despite the obviousness of the judge's error.

Meanwhile seven more men were executed until litigation over the cruelty of the state's method of killing resulted in what has essentially been a moratorium since 2006.

In 2012, I argued a case in the California Supreme Court.  At that time six of the seven justices were less than sympathetic, if not pointedly hostile, to death penalty appeals but I nevertheless thought I had a slam dunk.  The key instruction explaining to the jury how it should consider and weigh the evidence in determining whether or not to vote for death was mistakenly -- inexcusably -- omitted.  The jurors were on their own without any guidance in making this most critical choice between life and death.  But the justices preferred to ask questions about the gruesome facts of the case.  They ultimately found this fundamental error would not have made a difference -- despite the fact that an earlier jury hearing the same evidence (including the gruesome facts) had actually deadlocked on what penalty to impose after being given the complete and accurate instructions. 

I walked out of that courtroom feeling that I had just wasted years working on a case in which the highest court in the state cared more about meting out punishment than dispensing with justice.  I had become what I had long feared -- merely a cog in the death machine.

And it is a machine that is completely and irrevocably broken.  Who gets a death sentence and who is ultimately executed is an arbitrary and unreliable process, based far more on factors of race, on the political leanings of prosecutors and the quality of defense counsel than on the nature of the crime or the character of the defendant.  (See California's Death Penalty Cannot Be Reformed; It Must Be Replaced)  It is a machine in which the legal procedures one needs to navigate in order to have claims meaningfully considered by the courts are all but impenetrable.  And it is a machine that simply can no longer function -- overwhelmed by far too many cases and not enough qualified lawyers to handle them -- it takes several decades to reach a resolution, more often because the inmate has died of suicide or what are referred to as "natural causes."  (See, e.g., The Unnatural Death of Bernard Hamilton)

But, at bottom, it is not because of its arbitrariness, its ineffectiveness or its unreliability that California's death penalty must be abolished.  It is not because it is irrefutably racially biased.  And it is not because it is dysfunctional and ridiculously expensive -- costing taxpayers $150 million a year while close to 750 inmates languish on the country's largest death row.  Although those are all compelling reasons. 

It is because state killing is killing.  It is using the immense powers of the government for vengeance.  It is an immoral, barbaric practice that degrades and dehumanizes everyone -- from the condemned to the condemners and all the rest of us. 

It is far past time to tear the machine down.

Wednesday, October 26, 2016

Prop 62 Will End California's Unreliable Death Penalty; Prop 66 Will Perpetuate Its Unreliability

My client Tom Thompson was executed in 1998
I knew if I wanted to see Tom one last time I had to leave for the prison soon. It was already late in the afternoon and at 6:00 pm, he would be taken from the visiting area to the death watch cell for his last meal. There he would remain until 25 minutes before midnight when he would be led to the execution chamber next door. There wasn’t anything left for me to do anyway, so I left my San Francisco office and drove over the Golden Gate Bridge to San Quentin State Prison. 

The parking lot to the East Gate of the prison is just a few yards from the San Francisco Bay. Even after countless visits the contrast between the sweeping vista of the coastline and the grim reality inside the prison’s peach colored concrete walls is striking. I passed through security and walked slowly down the long path leading to the Main Visiting Room. I was let in through the two sets of heavy doors, and saw Tom, surrounded by family and close friends, presiding over a gathering that could only be described as surreal. Tom had been on death row for fourteen years, and the prison guards who knew him well seemed as traumatized as everyone else. They were overly solicitous, awkward, almost apologetic. Instead of the usual vending machine fare there was a platter of cold cuts for sandwiches and sodas on a long table. Although in a matter of hours he was going to be strapped to a gurney and lethally injected with poison, it was Tom who was trying to keep things light, with the corny jokes and over-the-top impersonations – Steve Martin as the “Wild and Crazy Guy” and Mike Myers as Austin Powers – with which I had become all too familiar.

Behind his silliness, Tom was thoroughly depleted from being the center of a spectacle that surrounded him as the fifth man about to be executed in California since the death penalty was re-instituted in 1977. A physically healthy 43 year old was going through the process of dying, and it was disorienting and  unbearably stressful. He had been enduring emotionally-charged visits from his friends and loved ones, for whom he felt the need to constantly perform. He met often with me and other members of the legal team to approve a list of execution witnesses (he was entitled to five) and to be kept abreast of last minute developments – of which there were few. He had been under 24 hour surveillance from guards for the past five days, making sleep impossible. In accordance with prison rules, he had been stripped of his “non-legal property.” He had no reading or writing material. He was denied his art supplies, which he had used for surprisingly impressive paintings over the years, including a portrait of Billy Idol he had given me a few months earlier.

We had been preparing for this moment for far too long, having gone through a similar process one year earlier when, despite a stay of execution, prison personnel proceeded methodically with its execution protocol until, with six hours to spare, they were finally assured that the Supreme Court would not disturb the stay. There was not much left to say. Tom, although hampered by waist chains, enveloped me as best he could in a big bear hug, and thanked me for all I had done. He told me that I should feel proud about putting up such a good and righteous fight. I replied that it had been an honor to have worked with him. I exchanged tearful goodbyes with his sister and mother. I walked out of the prison and returned to my office where I continued to file court papers with little chance of success and railed to reporters about injustice. All to no avail. Six minutes after midnight on July 14, 1998, Tom Thompson was dead.

*          *          *          *

Tom Thompson had no criminal record or history of violence when he was tried for the murder of Ginger Fleischli in 1984.  He was found guilty of murder and sentenced to death based largely on the false testimony of jailhouse snitches and the failure of his trial lawyer to challenge the bogus evidence of rape invented by the prosecutor.  (The rape special-circumstance provided the basis for the death penalty.)

An explosive scandal involving the Orange County D.A.'s office has only recently shed light on the extent of the unethical behavior routinely engaged in by its prosecutors to secure death sentences.  The reliability of many other Orange County cases has been called into question since the D.A. scandal broke -- and one murder conviction based on the false testimony of one of the very same snitches who testified against Tom has been reversed.  Of course, this all comes too late for Tom.

There are approximately 750 men and women on death row in California.  Tom Thompson is one of 13 who have been executed since the death penalty was reinstated almost 40 years ago.  While others sentenced to death around the same time languished on death row (several of whom continue to languish), his case jumped to the head of the class for no discernible reason.  And then a series of safeguards designed to ensure that the death penalty is fairly and reliably imposed -- most importantly, state and federal court review -- completely and utterly failed. 

Tom was represented by a trial lawyer who declined to provide even minimally competent representation that is constitutionally required in a capital case. He was convicted and sentenced to death in a county where a cynical prosecutor could pick and choose among jail inmates who were willing and able to manufacture evidence to support the prosecution’s theory of the case.  Nevertheless, his conviction and death judgment were rubber-stamped by the California Supreme Court which for most of the last three decades refused to meaningfully review death penalty cases.


Tom's death sentence and rape-related charges were reversed in federal court based on his lawyer's failure to adequately challenge the prosecutor's case.  But a randomly drawn conservative 3-judge panel of the Ninth Circuit overturned that ruling and further review by an 11-judge "en banc" panel was denied -- not because of anything having to due with the merits of Tom's legal claims, but because of a glitch in the court's internal communication system.  The Ninth Circuit ultimately remedied its oversight, vacated the death judgment and ordered a new trial.  But the U.S. Supreme Court reversed and reinstated Tom's death sentence based on a legal technicality -- that Ninth Circuit had waited to long to grant relief.  Meanwhile, new evidence surfaced that corroborated Tom's long-standing version of events supporting his claim of innocence.  But this evidence was deemed to have been discovered too late and presenting it to the courts was stymied by insurmountable legal procedures that favored finality over fairness and reliability.

Almost twenty years later, poor defense lawyers, unsavory prosecutors, disinterested courts and impenetrable procedural hurdles remain all too common elements in capital cases.  They are inherent aspects of an irreparably dysfunctional system. Apart from the barbarity of the death penalty, the absence of meaningful safeguards to ensure that death sentences are not unreliably and arbitrarily imposed and carried out should be deeply disturbing to anyone who cares about justice. 

There are two death penalty initiatives on the ballot in California:  Proposition 62 will repeal the death penalty and replace it with a sentence of life without the possibility of parole.  Proposition 66 purports to reform it with what the Los Angeles Times described as “a menu of mostly distasteful ideas.”

What Proposition 66 would actually do is take a broken system and make it worse by shifting the costs and burdens to ill-equipped lower courts and unqualified attorneys. It purports to speed up appellate review of death sentences by adding new bureaucratic layers to the process -- saddling local trial courts with the responsibility of adjudicating capital appeals and forcing attorneys with no experience with capital cases to take them. 

Proposition 66 would do absolutely nothing to address the root problems with California's death penalty – arbitrariness and unreliability -- the problems which led to Tom Thompson's execution.  Worse, it would further undermine the already tenuous ability of the legal system to ensure that death sentences are fairly and consistently imposed and that innocent men and women are not executed.  If it passes, Proposition 66 will pave the way for more Tom Thompsons.

Proposition 62 provides a simple, commonsense solution to an unfixable death penalty system.  It would finally put an end to this risky, arbitrary and dysfunctional mess.  


For more information click this link to the Yes On 62 campaign

Friday, October 21, 2016

The Republican Party -- Not Just Its Candidate -- Hates Democracy

Among just about everyone but the basket of deplorables, Donald Trump's failure to grasp the basic norms of democratic rule have sparked disbelief and outrage -- and fear.  His attempts to preemptively delegitimize a putative Clinton Presidency with outlandish claims of voter fraud and election-rigging, his jack-booted assertions of Clinton's disqualifying criminal offenses and threats to jail her, and his unprecedented refusal to agree to accept the outcome of the election unless he wins have been rejected even by most of the Republican establishment.

But those purportedly noble and principled Republicans don't need Trump to undermine our democratic institutions.  They are already doing so themselves by thwarting a sitting president's efforts to appoint a well-qualified candidate to the United States Supreme Court -- a nominee that they had previously praised -- for no other reason than it would likely alter the ideological balance on the Court.  And John McCain has now made explicit what has been a poorly kept secret -- that the Republicans will continue to oppose whatever nominee the next Democratic president selects:  "I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.  I promise you."

This is a stunning admission. Presidents have always been given deference in filling Supreme Court vacancies, as Jonathan Chait explained: while "senators might object to a particular nominee on the basis of ideological extremism or lack of qualifications, [] the president’s general right to appoint a member of his judicial team was considered sacrosanct.”

But, as I wrote back in February, after the death of Justice Scalia when Republicans began crafting excuses for why they would not consider a replacement chosen by President Obama, "Republicans Will Not Release Their Stranglehold On The Supreme Court (Ever)."  That is because Republicans rely on a conservative Supreme Court to obstruct liberal initiatives and ensure that their own policy positions are enacted or upheld -- such as allowing unfettered campaign contributions, limiting voting rights, gutting environmental regulations and protecting Wall Street.  Maintaining a right wing court is also a critical rallying point for social conservatives who make up their base, and who often vote Republicans not out of economic self-interest but in the hope of limiting restrictions on the Second Amendment and overturning Roe v. Wade. 

Importantly, the Republican's Supreme Court obstruction is not another case of both sides do it.  Republicans like to argue that it was the Democratic Party that started politicizing Supreme Court nominations when they defeated Reagan's nomination of Robert Bork in 1987.  But Bork was no mere conservative.  He was a radical jurist whose views on the federal role in protecting civil rights, voting rights and reproductive rights were quite far outside the mainstream.  Bork's nomination was not filibustered; he was given a full, if incredibly contentious, confirmation hearing, after which six Republicans voted with the Democrats to reject him.  Notably, Reagan's subsequent appointees -- Kennedy (who was nominated after Bork's defeat) and Scalia -- were confirmed, as were the extremely conservative nominations of the two presidents Bush. 

As a result, Republicans have had a majority on the Supreme Court since the Nixon Administration, and have truly come to believe that this is how it must always be.  As McCain strongly implied, they think that only a Republican president should be able to make Supreme Court appointments.  But in a functioning democracy, one party does not get to keep a branch of government for themselves. 

The only way to stop them is for Democrats to not only win the presidency but to take back the Senate -- flipping five states (or four if they can hold Nevada).  With a Senate majority, Democrats can take away the Republican filibuster if they continue to abuse it by refusing to permit up-or-down votes on the president's choices to the Supreme Court (and the lower federal courts).

Trump is an ignorant blowhard who either doesn't understand or doesn't care about democratic principles.  Luckily, he will never have his tiny little hands on the levers of power.  But we still need to worry about the Party that nominated him. 

Monday, October 10, 2016

Lost In Debate: Whither Goes The Supreme Court

Understandably lost in the muck and mire of the second debate -- in which Trump claimed his sexual predatory comments were not worse than Isis beheadings and became the first presidential candidate in modern history to threaten to jail his political opponent -- were the responses to a question about the current vacancy on the United States Supreme Court:  "What would you prioritize as the most important aspect of selecting a Supreme Court justice?"

Clinton responded that she wanted "to appoint Supreme Court justices who understand the way the world really works, who have real-life experience," that she wanted "to see the Supreme Court reverse Citizens United and get dark, unaccountable money out of our politics," and wanted "the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don't always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise." She said she wanted "a Supreme Court that will stick with Roe v. Wade and a woman's right to choose" and "that will stick with marriage equality."  She also said she wanted "a Supreme Court that doesn't always side with corporate interests" and the wealthy. 

Trump claimed he would look "to appoint judges very much in the mold of Justice Scalia" and noted that he has put forth a list of 20 prospective justices who he claimed to be "highly respected, highly thought of, and actually very beautifully reviewed by just about everybody."  And he stressed that he would appoint justices who will respect "the Second Amendment, which is totally under siege by people like Hillary Clinton."

As I wrote here (Justice Scalia Has Left The Building), Antonin Scalia, may he rest in peace, was an arrogant, partisan hack whose decisions were completely result-oriented, masked in a flawed legal theory.  The last thing this country needs is another Scalia to cement the right wing majority on the Court for generations.  And as for the 20 (mostly) white men who are on Trump's A-list, John Yoo, now a law professor and formerly the notorious author of the notorious torture memo for the Bush White House, tellingly approves, calling it an "all-star list of conservative jurisprudence."  According to NPR's Nina Totenberg, they are "bedrock conservatives, many with records hostile to abortion rights, same-sex marriage and federal regulations." Nan Aron of the Alliance for Justice described them as "ultraconservatives who espouse a backward view of the law [with] track records [that] suggest they would endanger the cherished rights and freedoms of Americans."

If any redeemable, non-deplorable American still needs a reason to vote for Clinton, there you go.

Tuesday, October 4, 2016

The Folly Of Voting For A Third-Party Candidate When One Of The Other Two Is Donald Trump

The American Republic stands threatened by the first overtly anti-democratic leader of a large party in its modern history—an authoritarian with no grasp of history, no impulse control, and no apparent barriers on his will to power....If Trump came to power, there is a decent chance that the American experiment would be over. This is not a hyperbolic prediction; it is not a hysterical prediction; it is simply a candid reading of what history tells us happens in countries with leaders like Trump."  -- Adam Gopnik, The New Yorker Magazine, May 20, 2016
In 1980, one year before Bernie Sanders was elected mayor in my college town, I voted in my first presidential election.  My idealistic young self could not abide either of the two major party candidates. The incumbent, Jimmy Carter, was an ineffective, fiscal conservative and Ronald Reagan was a dangerously uninformed right wing joke. I proudly cast my vote for third-party candidate John Anderson. Reagan, of course, won handily, and my vote for Anderson was nothing more than an empty gesture.  Neither my protest vote nor anyone else's had any impact on the election, on building any kind of political movement or on sending a signal to the political establishment.

By 1984, I had learned my lesson and campaigned for the remarkably uninspiring Walter Mondale.  True, Ronald Reagan won again, but the take away for me was that in our current political system, one of the two major parties is going to capture the presidency and no matter how one feels about the Democratic nominee, a Republican president is going to be far more disastrous for the economy (unless you are a billionaire or large corporation), for the environment (unless you live in a self-sustained eco-system), for civil rights and human rights (unless you are a racist, xenophobic, homophobic religious bigot) and for national security and foreign affairs (unless you are an oil company CEO or an arms manufacturer).

Exhibit A remains Ralph Nader's third-party effort in 2000.  This was a self-indulgent, quixotic exercise that -- like John Anderson's run -- had no discernible positive impact on the political landscape.  Unlike Anderson's campaign, however, Nader's folly did usher into power a Republican:  George W. Bush, one of the worst presidents in U.S. history. 

Sure, there are plenty of reasons why Bush won that have nothing to do with Nader -- his Democratic opponent, Al Gore, ran a tepid, centrist campaign, the mainstream media bought a false right wing narrative about Gore's dishonesty and ignored Bush's less than compassionate conservatism and, of course, there were the shenanigans in Florida and the Supreme Court's "crudely partisan" decision that handed Bush the presidency.  But, it cannot be denied that without Nader, the outcome in Florida would not have been an issue and Al Gore would have become the 43rd president of the United States.

Think about what the world would be like if Nader had declined to run (at least in battleground states) or his supporters realized the dangers of a Bush presidency and eschewed their protest vote.  No hanging chads.  Perhaps no 9/11.  Perhaps no Great Recession.  Certainly no Iraq War, no Guantanamo and no torture.  An efficient and humane response to Katrina.  Less oil drilling and more meaningful efforts to combat climate change.  A liberal majority on the Supreme Court with no Chief Justice Roberts or Justice Alioto.  No Citizens United.  Dick Cheney as a mere footnote to history.  I could go on and on.

Undeterred, Ralph Nader does go on and on, continuing to be unsafe at any speed.  He is unapologetic, myopic and arrogant as ever.  For him, the system is corrupt, there are no lesser evils, and any compromise that might entail voting for a less-than-pure candidate is nothing short of unconditional surrender to corruption.  For him, there was no difference between Al Gore and George W. Bush.  For him, there apparently is no difference between Hillary Clinton and Donald Trump.

The Nader Debacle should have buried once and for all this cynical, self-defeating argument that there is no substantive difference between the two parties.  But even if this inconvenient truth has not shamed us into having a more pragmatic view of presidential politics, we only need to look at the horror of Donald Trump to realize that we are not talking about voting for the lesser of two evils.  There is only one evil. 

Progressive-minded folks who think it is better to sit out the election or vote for a third-party candidate should consider how the next president's choices for the Supreme Court will impact our political, social, environmental and justice systems for generations. (Read This: The Fucking Supreme Court)  Outraged by the corrosive effect of money on elections? A liberal Supreme Court could overturn Citizens United, while a conservative one would expand its reach
  
And think about how much harder it would be to make any progressive gains with conservatives in control?  Thomas Geoghegan is absolutely right:
The odd thing is, if you want the Left to come back, you have to put the center-left in power. It sounds paradoxical, but it's true: Give people a little taste of equality and they will want even more. The women's movement, the civil rights movement, the huge egalitarian transformations of the 1960s came about in large part because of the much more egalitarian and prosperous country created by the New Deal and yes, the Great Society itself.  Let any Republican get in and it will always go the other way.
Voting for Gary Johnson by anyone who considers themselves even moderately liberal would be as nuts as he appears to be.  At least Ralph Nader had a progressive platform.  Johnson not only continues to have inexcusable "Aleppo moments," but he would admittedly do nothing to combat climate change, he favors privatizing everything from schools to prisons, and he has a fiscally conservative vision that requires massive across the board spending cuts that would gut poverty and other social programs, spending on infrastructure, and Wall Street regulation. 

Sure, he's anti-war and pro-pot, but his libertarian principles, as Michael Tomasky points out lead him to this:
Johnson shrugs his shoulders at climate change and doesn’t think the government has any business addressing it. He supports the Citizens United decision and thinks donors should be able to spend “as much money as they want.” He backs the Trans-Pacific Partnership, which I would think most young people oppose strongly, after listening to Bernie Sanders inveigh against it for a year. Speaking of Bernie, Johnson opposes tuition-free college. He’s against a federal minimum wage—that’s right, any federal minimum wage (although sometimes his answers are so wandering and circumlocutory that it can be hard to tell). And as to guns, he told Slate in 2011: “I don't believe there should be any restrictions when it comes to firearms. None.”
What would a vote for Gary Johnson symbolize? 

And a vote for Jill Stein?  Geoghegan points out the irony:  "Should such a Green vote indirectly put the GOP in power, it is the end of the Paris Accords on Global Warming. It's not just that the United States would drop out—with the U.S. gone, other countries would, too. What would be the point of any other country complying? This would be devastating to the global—not to mention the planet."

The Onion brilliantly spoofed the "precious little voter who needs to feel inspired by a candidate," noting "how important it is for him to find a campaign that stirs genuine optimism and enthusiasm in its supporters."  Far more seriously, the great Bryan Stevenson bluntly remarked on the level of privilege it takes to decide not to vote (or to throw away one's vote on a third-party candidate) because the candidates are flawed:  "I don't know this world, where you get to pick the people who only work perfectly for you."  As he says, "If you don't want to vote for yourself, vote for the marginalized.  Vote for the people in this country who are suffering from oppression and inequality and abuse." 

Tuesday, September 27, 2016

Crying In Baseball

I recently heard someone talk about the power of being intensely passionate about something that you know deep down is really not that important.  And it is just possible that my love of, perhaps obsession with, baseball -- and the New York Mets -- might fall into this category.  For close to fifty years, I have closely followed a team that has provided endless drama, occasional miracles and an inordinate amount of heartache and heartbreak.  It is a passion that I take very seriously -- just ask the petrified trick-or-treaters who happened to knock on our door last Halloween when Daniel Murphy booted a grounder in the 8th inning of Game #4 of the World Series, and heard some choice and very loud expletives coming from the man on the couch.  But last night's game against the Miami Marlins -- a pivotal one for the Mets, who are in a three-way battle for a wild card berth -- surely tested the theory about what really matters.

This was the first Marlins game after the devastating death in a boating accident of their brilliant young pitcher, Jose Fernandez.  Just 24 years old, Fernandez was a spectacular pitcher with limitless ability, a heroic life story, and as engaging a personality as anyone in the game.

I tuned in at the close of the pre-game ceremony and witnessed a remarkable scene -- Mets and Marlins players embracing each other on the field.  All were visibly grief-stricken -- some barely holding back tears and others sobbing uncontrollably.  I wondered how they could possibly play a ball game after that, and as the Marlins took their positions, you could see them still wiping their moist eyes.


Dee Gordon lead off for the Marlins in the bottom of the first, and took the first pitch as a right-handed batter, emulating Fernandez's batting stance in tribute.  He then turned around to bat lefty and crushed Bartolo Colon's pitch into the upper deck for a home run.  When Gordon trotted around the base with tears streaming down his face it was hard to think about what this at bat -- or this game -- meant for the Mets' playoff chances.  It was a stunning moment, reminiscent of Mike Piazza's dramatic home run on September 21, 2011, the first game in New York after 9/11. 

I admit that after the Gordon homer, I wanted the Mets to come back and win (they lost 7-3), and I will be rooting for them to beat the Marlins tonight and tomorrow.  But Gordon's homer was a powerful reminder that while baseball is more than just a game, there are some things bigger than the box score.

Wednesday, September 21, 2016

California's Death Penalty Cannot Be Reformed; It Must Be Replaced: Yes on 62 And No on 66

Voters have an opportunity to finally put an end to California's failed experiment with the death penalty by passing Proposition 62, and replacing it with a sentence of life without the possibility of parole.

The history of California's death penalty is like a dystopian Goldilocks and the Three Bears story.  Its original death penalty law, codified in the late 1800s, was too hot -- with no guidelines for how or under what circumstances to impose death, it gave juries too much discretion.  It was struck down as unconstitutional in 1972. The next version was too cold -- taking the opposite approach with a mandatory death sentence that automatically imposed death when a defendant was found guilty of first degree murder, it provided for no discretion at all.  That law was found unconstitutional too. But unlike with Goldilocks, the death penalty scheme passed by California voters in 1978 -- the present law -- is far from just right.

As recently described in a Los Angeles Times editorial, California's death penalty is a "dysfunctional mess."  It has proven to be ineffective, unreliable and arbitrarily applied.  And it cannot be fixed. 

Among the many problems with California’s death penalty is that it leaves far too much power in the hands of individual prosecutors in individual county district attorney’s offices to decide which cases are "death worthy."  Indeed, one of the critical factors that determines who receives a death sentence is not the nature of the crime or record of the defendant but a wholly arbitrary one -- the county in which the crime happens to have been committed.  Remarkably, there are only a tiny fraction of counties -- sixteen -- in the entire country that account for most current death sentences, and five of them are here in California (Los Angeles, Orange, Riverside, San Bernardino and Kern). 

Another factor leading to arbitrariness is the quality of the defense team.  It has long been understood that the death penalty is generally reserved for those with the worst lawyer, not those who commit the worst crimes.  Defendants who are represented at trial by experienced, well-trained capital defense attorneys, particularly in public defender offices, are far less likely to get the death penalty than those represented by private lawyers who often suffer from conflicts of interest when it comes to spending time and money on developing a defense.  The differences are stark.  In Los Angeles, for example, thirty defendants represented by private attorneys have received a death sentence compared with four represented by public defenders. 

And, one can't talk about the systemic problems with the death penalty without talking about race.  It is simply a reality that one who kills a white person is far more likely to be subject to the death penalty than one who kills a person of color.  Add the ability of prosecutors to use peremptory jury challenges to strike African Americans and Latinos from juries, and the fact that most judges and prosecutors in counties where the death penalty is most frequently sought are white, and we are left with a system that is plagued by racial bias.

In sum, California’s current death penalty has proven to be an arbitrary and unreliable government program that has cost taxpayers $5 billion dollars while resulting in "just" thirteen executions – none in the past ten years.  All the while, 746 men and women languish on the largest death row in the country – a volume of death sentences that has clearly overwhelmed the judicial system. 

There are two death penalty initiatives on November’s ballot:  Proposition 62 will repeal the death penalty while Proposition 66 purports to reform it.

The backers of Proposition 66 are pushing another fairy tale.  In reality, Proposition 66 would take a broken system and make it worse by shifting the costs and burdens to ill-equipped lower courts and unqualified attorneys. It purports to speed up appellate review of death sentences by adding new bureaucratic layers to the process -- saddling local trial courts with the responsibility of adjudicating capital appeals and forcing attorneys with no experience with capital cases to take them.  A recent San Francisco Chronicle editorial called Proposition 66 a “highly complex, probably very expensive and constitutionally questionable scheme.”

Proposition 66 would do nothing to address the root problems with California's death penalty – ineffectiveness, arbitrariness, racial bias and unreliability. 

And even worse, Proposition 66’s proposed changes would actually slow down, not speed up, an appellate process that already takes 25 years or more. The nearly 750 people on death row are all entitled to qualified attorneys to handle their post-conviction challenges -- but there are simply not enough lawyers ready and, more importantly, able to do so.  But the answer isn't lowering the bar for the appointment of hundreds of untrained attorneys and increasing the number of courts that can consider challenges as Proposition 66 would do.  This would only lead to more problems, more delay and more unreliability -- and more costs.

And even assuming Proposition 66 could miraculously speed up the first part of the appellate process in state court, there is a second layer of mandated review in federal court after the state process concludes -- another bottleneck in which over 200 of California death row inmates are seeking review (a number that is itself larger than just about every other state's death row).  Proposition 66 does nothing to address the delays in federal court – and thus the delays in the system overall -- because California voters can’t set rules for the federal post-conviction process.

The Los Angeles Times described Proposition 66 as “a menu of mostly distasteful ideas” that is unlikely to “achieve the kind of fast-tracking” its proponents promise while likely to make the system “even more expensive.” It would undermine the already tenuous ability of the legal system to ensure that death sentences are fairly and consistently imposed and that innocent men and women are not executed.  This attempt at streamlining justice will simply not fix the intractable flaws of California's death penalty.

Proposition 62 provides a simple, commonsense solution to an unfixable death penalty system.  Replacing the death penalty with life without the possibility of parole, according to the non-partisan Legislative Analyst’s Office, will save taxpayers $150 million every year.  More importantly, Proposition 62 will finally put an end to this risky, discriminatory, arbitrary and dysfunctional mess. 

To volunteer, donate and/or learn more about Prop 62, click here


[Read more:  The Arbitrary Execution of Tom ThompsonAnother Poster Child For California's Dysfunctional Death Penalty]

Monday, September 19, 2016

Birtherism And Basket Cases

This weekend proved that the mainstream media is incapable of handling the sheer volume of dishonesty and deceit that oozes out of the Trump campaign.  After Donald Trump brazenly lied about his role in the birther movement on Friday, blaming Hillary Clinton for originating this easily discredited racist conspiracy theory and crediting himself for putting an end to it -- his surrogates went on the national teevee talk shows over the weekend and doubled-down, pushing the same blatant falsehoods.  The sheer audacity of Republican party stalwarts, from Chris Christie to Reince Preibus, lying to their incredulous hosts who did little more than stammer in response, demonstrated more clearly than ever that we have gone through the looking glass.  The truth no longer seems to matter.

In sum,
  • The notion that Barack Obama was born in Kenya was an insidious, racist conspiracy theory launched from the fringes of the right wing in order to delegitimize the first African American president. 
  • Donald Trump's transformation from real estate tycoon/reality TV star to a presidential candidate was triggered by his endorsement of the birther conspiracy; it has been a key part of his political identity that he continued to nurture for five years -- until Friday.
  • On Friday, he grudgingly conceded that Obama was, in fact, born in the United States without explaining what happened to the clear and convincing evidence he claimed to have to the contrary.  And he falsely claimed that Clinton was responsible for initiating birtherism and he, Trump, put a stop to it. 
  • Over the weekend, his campaign and surrogates continued to lie about Trump's and Clinton's respective roles in the birther movement.  
40% of Americans of voting age are Republicans who will vote for any Republican candidate regardless of their racist, misogynist, xenophobic or anti-Muslim views (and, Clinton is right that about half of the 40% will do so because of those views).  This 40% also doesn't care that he lies about virtually everything, has a long and dishonorable history of corruption, is remarkably ignorant and unable to articulate any policy proposal without lapsing into gibberish, and leans heavily towards fascism as a governing principle.  They certainly are not troubled that he will never release his tax returns or provide further details about his Foundation or the Trump Organization, or truthfully answer questions about his finances, his philanthropy (or lack thereof) or his entanglements with foreign governments and businesses that may conflict with U.S. policy prerogatives.

Deplorable, but whatever.

Trump still needs 51% to win, right?  So what about the other 11% who seem to float back and forth between the two candidates depending on the news cycle? 

What's up with these folks? Are they too pure to vote for Clinton because she is not the perfect progressive candidate and they are fed up with voting for what they see as the lesser of two evils?  Are they too disillusioned to believe there is any real difference between Trump and Clinton and they assume that our government will put adequate checks on potential abuses of power?  Are they so frustrated with the political system that they want to shake things up or tear it all down despite the damage a Trump presidency would do to the environment, the economy, the courts and justice system and our relations with the world. 

This latest round of utter mendacity should be a wake up call to every decent person who somehow has missed the fact that Trump's entire campaign is based on racism and lies.  To vote for Trump because you are a Republican who believes that his presidency will advance your political philosophy is one thing.  To vote for Trump -- or to vote for a "protest" candidate or no one at all, thereby increasing his electoral odds -- out of  frustration or cynicism or apathy is truly deplorable.

Friday, September 16, 2016

A Day In The Political Life Of The Deplorable Donald Trump

The day began with great anticipation.  Donald J. Trump, whose political career was essentially launched five years ago when he began wallowing in a racist conspiracy aimed at delegitimizing the first African American president, was going to deliver a major statement on what has come to be known as the "birther" issue.  The New York Times, which has been loathe to call Trump out for either his lies or his racism, actually noted that Trump has continued to "promote" this "lie" and suggested it was borne out of "racism":
Much has been made of Mr. Trump’s casual elasticity with the truth; he has exhausted an army of fact-checkers with his mischaracterizations, exaggerations and fabrications. But this lie was different from the start, an insidious, calculated calumny that sought to undo the embrace of an African-American president by the 69 million voters who elected him in 2008.
Whether Trump was really going to admit that President Obama was born in the United States was far less interesting than learning about why he peddled this lie for so long and what happened to the information he claimed to possess that purportedly proved what all reasonable minds knew was utter bullshit. 

But Trump bamboozled the media yet again.  With reporters anxiously awaiting for Trump's remarks on birtherism, he pivoted to promoting his new D.C. hotel ("I think it may be one of the great hotels anywhere in the world") and promoting himself (with a group of decorated war veterans to sing his praises).  He then gave the following statement and took no questions:
Now, not to mention her in the same breath, but Hillary Clinton and her campaign of 2008 started the birther controversy. I finished it. I finished it. You know what I mean. President Barack Obama was born in the United States—period. Now we all want to get back to making America strong and great again. Thank you. Thank you very much.
Of course, Hillary Clinton did not start the birther movement and Donald Trump did not resolve it.  These were brazen, ridiculous, easily provable lies.

But Trump wasn't done. 

Later in the day at a rally in Florida, he falsely stated that Clinton intends to "destroy your Second Amendment" -- which she doesn't and constitutionally couldn't -- and then suggested that Clinton's bodyguards should "disarm immediately" and then "let's see what happens to her. Take their guns away, okay? It would be very dangerous."  Of course, this isn't the first time Trump has suggested a "Second Amendment" solution to a Clinton presidency.

Another normal day for Donald Trump.  Relentless lies, sidestepping his own racist behavior while blaming others, and thinly veiled calls for violence.  Normal for Trump, but not normal for a presidential candidate of a major party. 

It is far past time for the mainstream media to stop covering the campaign as a contest between two equally flawed candidates.  Donald Trump is more than flawed.  He is a dangerous, indeed, deplorable demagogue.  He is unapologetically corrupt, and he lies or spews hate and violence almost every time he opens his mouth.   

The New York Times finally called him a liar today.  Hallelujah.  Others in the media signaled that they were disgusted (and hopefully embarrassed) by his political chicanery and dishonesty.  Has the media finally reached a tipping point?  We better hope so.