Thursday, March 31, 2011

Time Begins On Opening Day

You spend a good piece of your life gripping a baseball, and in the end it turns out that it was the other way around all the time.  -- Jim Bouton
The long-time sportswriter for the Washington Post, Thomas Boswell, wrote a timeless piece collected in a book of the same name, Why Time Begins On Opening Day, published in 1984.  Boswell muses on the "resolute grasp" that baseball maintains for so many of us" and why our "affection for the game has held steady for decades, maybe even grown with age."  He asks what baseball is doing among our other "first-rate passions."  And, indeed, when one looks over the posts on this blog, it could seem incongruous to have baseball up there with such serious and important issues as social justice, civil rights and capital punishment.

Boswell explains that "in contrast to the unwieldy world which we hold in common, baseball offers a kingdom built to human scale.  Its problems and questions are exactly our size.  Here we may come when we feel a need for a rooted point of reference."  It is not that baseball is an escape from reality, "it's merely one of our many refuges within the real where we try to create a sense of order on our own terms."  And here's the key, I think:  "Born to an age where horror has become commonplace, where tragedy has, by its monotonous repetition, become a parody of sorrow, we need to fence off a few parks where humans try to be fair, where skill has some hope of reward, where absurdity has a harder time than usual getting a ticket."

As Boswell points out, baseball "offers us pleasure and insight at so many levels and in so many forms."  There is history -- an "annual chapter each year since 1869."  At the ballpark itself there is "living theater and physical poetry."  And perhaps, "baseball gives us more pleasure, more gentle unobtrusive sustenance, away from the park than it does inside it," pouring over box scores, crunching statistics, debating players and teams with our cohorts, and watching games and highlights on tv.  "The ways that baseball insinuates itself into the empty corner, cheering up the odd hour, are almost too ingrained to notice."

Opening day is finally here.  Play ball!

Wednesday, March 30, 2011

Double Dip

Robert Reich's latest post, originally on his blog, brings us the bad news that we're likely headed for a double dip recession, and explains why the government isn't telling us the truth.



The Truth About The Economy:  We're Heading Back Toward A Double Dip

By Robert Reich, March 30, 2011

Why aren’t Americans being told the truth about the economy? We’re heading in the direction of a double dip – but you’d never know it if you listened to the upbeat messages coming out of Wall Street and Washington.
Consumers are 70 percent of the American economy, and consumer confidence is plummeting. It’s weaker today on average than at the lowest point of the Great Recession.

The Reuters/University of Michigan survey shows a 10 point decline in March – the tenth largest drop on record. Part of that drop is attributable to rising fuel and food prices. A separate Conference Board’s index of consumer confidence, just released, shows consumer confidence at a five-month low — and a large part is due to expectations of fewer jobs and lower wages in the months ahead.

Pessimistic consumers buy less. And fewer sales spells economic trouble ahead.

Republicans Love/Republicans Hate


Republicans love cutting salaries and benefits of public employees.

Republican public employees hate cutting their own salary or benefits or their staff's.

This has been another episode of Republicans love/Republicans hate.

First Amendment Exercise

Chicago Anti-War Protest, 2003
Locke Bowman, Legal Director of  the MacArthur Justice Center, wrote the following piece, originally published at Huffington Post, in which he makes the essential point that to maintain our right to peaceful protest, which so many of us take for granted, it is important to exercise that right and to have lawyers defending us when the government tries to shut us down.

Demonstrators and Their Lawyers Protect Our Right to Peaceful Protest

By Locke Bowman, March 29, 2011

It has been a season of demonstrations. In the midst of economic upheaval, natural and human-engineered disasters, and war, we have been reminded again, with recent evidence from Egypt and Tunisia, of the awesome power of the people assembled in peaceable, public protest against tyranny and oppression. Only a cold heart could have remained unmoved by the voices and images of the young Egyptians who mobilized their nation (and its tired, defeated opposition parties) to overthrow their authoritarian oppressors.

Elsewhere, sadly and predictably, repressive regimes have responded to peaceful protests with lethal violence. News over the weekend that the Syrian government had fired on its citizens, killing scores, was a depressing echo of the stories from Iran, Yemen, Bahrain and, of course, Libya. These government crackdowns are more evidence -- of a less uplifting variety -- of the immense, potential power of organized protest.

It's a good thing that the First Amendment of our Constitution bluntly forbids laws "abridging the right of the people peaceably to assemble." Peaceful assemblies of the people in this country helped bring an end to the Vietnam War. Dr. King's march on Washington is the best remembered of countless marches, protests and demonstrations that ended segregation and ushered in a host of civil rights reforms. More recently, the Million Man March focused the attention of much of the nation on the resilience of African American men in the face of crushing burdens. And this winter, protests by public union members in Wisconsin, Indiana and Ohio held out some much-needed hope of blunting the current right-wing assault on working men and women.

Despite the protection that our Constitution so unambiguously affords to assemblies of the people, courageous men and women have suffered arrest, indignity and brutality in the exercise of that right. Images of hoses and dogs that police turned on civil rights marchers in the deep South remain etched in our collective memory. Vietnam War protesters were sometimes beaten and bloodied.

Eight years ago this month, in March 2003, at the start of the Iraq invasion, some 9,000 mostly young men and women assembled in the federal plaza in the heart of downtown Chicago and marched north on Lake Shore Drive to show their opposition to a war they felt was being waged on a pretext and for no good end. Those protesters, of course, were prescient. At the time, the overwhelming majority of Americans supported the invasion. Not so today.

The Chicago Police Department -- world famous for its brutal assault on demonstrators at the Democratic National Convention in 1968 -- arrested about 900 of the March 2003 demonstrators. Claiming that the marchers had defied an order to disperse, Chicago police wearing full riot gear and wielding batons moved in on the protesters (seriously injuring some). Scores of idealistic young people were arrested, loaded into waiting paddy wagons and transported to police lockups where many spent the night. The police charged some with disorderly conduct or resisting arrest.

The police, of course, deny that those charges had anything to do with the protesters' opposition to the invasion. But it's hard to imagine the police employing the same tactics if the march had been in support of Mayor Daley or the Fraternal Order of Police.

The Chicago chapter of the National Lawyers Guild called for volunteer lawyers to provide free legal representation for every one of the charged protesters. (The Roderick MacArthur Justice Center, where I work, took half a dozen of the cases.) All of the bogus charges were dropped before trial. Stalwart civil rights lawyers Jim Fennerty, Janine Hoft, Joey Mogul, Melinda Power and John Stainthorp then filed suit on behalf of the arrested protesters, arguing that the arrests violated the First Amendment and the Fourth Amendment to the U.S. Constitution.

R.I.P. Eric King

Roman Colosseum lit to protest an execution
On March 30, 2011, Arizona executed Eric King for the 1989 murders of two men at a Phoenix convenience store.  The execution proceeded even after it was learned that the state may have obtained the lethal injection drug sodium thiopental from a British company illegally by identifying the drug in Customs and FDA documents as intended for animals, not humans.

This is the tenth execution in the United States in 2011, the first in Arizona.  King is the seventh African American to be executed this year.

Score One For Freedom Of Religion

In Khatib v. County of Orange, an 11-judge panel of the 9th Circuit Court of Appeal ruled unanimously that Souhair Khatib, a Muslim women, could sue the county under a federal law designed to protect a prisoners' religious freedom after she was forced to remove her head scarf in a courthouse holding cell.  Steve Rohde, in an article originally published in the L.A. Daily Journal, writes about the case and its significance.


One Step Closer To a ‘More Perfect Union’

By Stephen F. Rohde, March 22, 2011

In the midst of a national debate over the rights of Muslims to  equal protection of the law, the 9th U.S. Circuit Court of Appeals has extended federal protection to the wearing of a religious headscarf while in pretrial detention.

Souhair Khatib, a practicing Muslim, in accordance with her religious beliefs, wears a hijab, or headscarf, covering her hair and neck when in public. Khatib and her husband pled guilty in Orange County Superior Court to a misdemeanor violation of California welfare law. The Khatibs were sentenced to three years of probation and ordered to complete 30 days of community service.  Two days before the deadline for completing their community  service, Khatib and her husband appeared in court to seek an extension. The  court revoked Khatib’s probation and ordered her taken into custody. She was  handcuffed and taken to the holding facility at a Santa Ana courthouse.

At the booking counter, a male officer ordered Khatib to hand over her belongings and remove her headscarf. According to her lawsuit, having her head uncovered in public, especially in front of men outside of her immediate family, is a "serious breach of Khatib’s faith and a deeply humiliating and defiling experience."

Weeping, Khatib explained that her religious beliefs forbade her from taking off her headscarf and pleaded with the officers to allow her to keep it on. She was warned that the male officers would remove the headscarf for her if she did not voluntarily do so. Wanting to avoid being touched by the male  officers — another violation of her religious beliefs — Khatib reluctantly  complied.

She spent the majority of the day in a holding cell in view of  male officers and inmates. Experiencing "severe discomfort," "distress," and "humiliat[ion]," Khatib attempted to cover herself by pulling her knees into her chest and covering her head with a vest she was wearing. At a hearing that afternoon, the court reinstated Khatib’s probation and granted an extension of  time to complete community service.

Wilco Wednesdays: Heavy Metal Drummer



Heavy Metal Drummer by Wilco.

Tuesday, March 29, 2011

Dazed And Confused

My long-time bud and spiritual blogfather, Lonnie Lazar, writes a very entertaining and provocative blog, I Just Have To Say.  Herewith is his latest piece on the wasteful persecution and federal prosecution of a dispenser of medical marijuana.

Dazed and Confused:  Justice's Mixed Messages on Medical Marijuana

By Lonnie Lazar, March 29, 2011

When it comes to Celebrity Justice, the name Scott Feil doesn’t have quite the cachet of Barry Bonds or Lindsay Lohan, but anyone interested in learning how justice is served today would do well to follow Mr. Feil’s fortunes along a tortured path in the country that famously promises “liberty and justice for all.”

Mr. Feil was the Executive Director of a southern California medical marijuana dispensary called United Medical Caregivers Clinic (UMCC) when the Los Angeles Police Department raided his business in 2005, using a search warrant that was ultimately determined to have been issued illegally.

Years of legal wrangling resulted in a 2009 ruling by the 9th Circuit Court of Appeals, which found LAPD’s actions in the case unconstitutional and returned to Mr. Feil and UMCC nearly $200,000 that had been seized by the police and turned over to federal prosecutors.

In the wake of the 9th Circuit’s ruling, federal prosecutors levied new charges against Mr. Feil and his colleagues.

Several co-defendants associated with UMCC, including Mr. Feil’s wife Diana, now face prosecution for federal crimes that could send each of them to prison for up to 20 years — which appears quite at odds with very public statements made previously by President Brack Obama and US Attorney General Eric Holder.

While campaigning for the presidency, Mr. Obama said that federal raids related to medical marijuana “make no sense.”

Mr. Holder issued formal federal guidelines for medical marijuana policy early in the new administration, saying in October 2009,  ”It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana.”

The UMCC defendants contend their business provided diagnosis, counseling and treatment for seriously ill people under the State of California’s Compassionate Use Act of 1996 (Prop 215), which legalized the distribution and use of marijuana for medical purposes in California. The fact that the business operated in compliance with state law was a key finding in the case decided by the 9th Circuit.

Now, more than four years after the original illegal search and seizure against their business, Mr. Feil, his wife and their colleagues remain consumed with efforts to keep federal agents at bay, defining their lives by a quest for liberty and justice.

Finality Trumps Justice

Troy Davis
The overarching principle guiding death penalty cases is the need for finality, not fairness and not justice.  Supreme Court Justice Anthony Kennedy asserted in 1998 that "only with an assurance of real finality can the state execute its moral judgment.  Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out."  Kennedy wrote those words in an opinion that overturned a federal court of appeal decision that had granted a new trial to my client.  Less than three months later, my client was executed despite what were serious questions about whether he had committed capital murder.  Tragically, the facts we discovered that cast doubt on his guilt were deemed too little, too late.  Although we had gathered evidence which undermined the prosecution's case, we were never permitted to present it at a hearing because we could not overcome the nearly insurmountable procedural hurdles put up by the courts.

Which brings us to Troy Davis and the rejection yesterday by the United States Supreme Court of his final appeals despite the lack of any physical evidence tying Davis to the murder, despite recantations from nearly all of the prosecution witnesses who claimed to have witnessed the shooting, and despite testimony that the prosecution's key witness confessed to the murder. 


Libyan Intervention In Context

The following post, originally published in openDemocracy, makes the key point that intervention in Libya should not be considered in isolation and emphasizes the importance of considering how such actions are viewed by Arab countries.  As the author, Professor Paul Rogers puts it, while "the diplomatic context of the anti-Gaddafi war is different from that of earlier western military interventions in the Arab world, its motives, methods, silences, and falsities are all too familiar."

Libya's War, History's Shadow

By Paul Rogers, March 24, 2011

The Libya war is shifting from the status of an internal to an international conflict, as western forces degrade Libya’s air-defences and general ability to deliver air-power. A campaign that started with French air-raids against troops and armour of the Muammar Gaddafi regime advancing on the eastern city of Benghazi on 19 March 2011 has continued with air- and missile-attacks against a wider set of Libyan naval and army targets.
These vigorous attacks from the three leading members of the coalition - France, the United States, and Britain - have not yet disabled the Gaddafi regime or prevented it from threatening some of the rebel areas, notably the town of Misrata to the east of Tripoli.

The coalition forces have now begun the more complex task of trying to target regime forces operating in urban areas. The likely pattern is that loyalist soldiers will quickly learn how to avoid exposure to attack, with many potential operations against them curtailed to avoid civilian casualties.

It is already apparent that early expectations of sudden regime collapse among some western analysts have proved unfounded. This outcome - one that Nicolas Sarkozy, David Cameron and Barack Obama must devoutly wish for - is still possible. But it is safer to assume that Gaddafi will survive for some weeks and possibly much longer.

Moreover, even the leader’s flight into exile (a possibility floated both by Britain’s foreign secretary on 21 February, and by the US secretary of state on 23 March) may not lead to wholesale regime implosion: the rebel forces are quite weak, and tens of thousands of Libyans have a vested interest in defending a system built on autocracy and largesse over four decades.

The coalition’s problems

The unusually robust United Nations Security Council mandate for the coalition’s operation means that the Libya war differs greatly from that against Iraq in 2003. But even in these early days the multiple problems facing the coalition are evident.

Monday, March 28, 2011

Keep Hope Alive

Meet the Mets:  "Horrible contracts, late-season collapses, devastating injuries, public-relations fiascos, and, just for good measure, an inextricable connection to one of the most notorious financial frauds in American history."  The Mets are not only predicted to lose a lot of games this year but, as the New York Times reported last week, they are projected to lose a lot of money, $50 million or more.

As Will Leitch writes in New York Magazine, however, there is cause for optimism.  He contends that with the hiring of Sandy Alderson and his brain trust, the team is in "safe, capable hands."  The bloated contracts of over-priced players seem to be a thing of the past, and once the worst of  prior management's contracts expire, the team will have far more payroll flexibility.  This will allow Alderson to follow his successful and sensible model:  "develop a base of homegrown talent, then supplement it with free agents."

The moves, thus far, have been promising.  First and foremost, the two albatrosses:  Oliver Perez and Luis Castillo.  They both remained ineffective this spring and were mercifully released despite years and money remaining on their contracts.  Jennry Mejia, the Mets top pitching prospect was inexcusably brought along far too quickly last year to merely flounder in the bullpen.  Now he thankfully has been returned to the minor leagues in order to develop as a starting pitcher.  In addition, as Leitch also notes, the Mets are allowing their younger players to "compete for big-league jobs rather than stick with past-their-prime veterans to provide 'leadership' or, more likely, 'losses.'"

As for this year, Leitch recognizes that the Mets are a "younger team, in transition, with young stars being filtered up through the system, more money spent on the draft, more importance placed on development."  While the Mets won't win their division, "it won’t be a team that trots out Oliver Perez, Luis Castillo, and Fernando Tatis either."  In addition, we will get a good look at promising young players, like second baseman Brad Emaus, catcher Josh Thole, and knuckleballer R. A. Dickey.  And "let’s not forget that David Wright, Jose Reyes, Jason Bay, and Johan Santana are still on this team."

Leitch predicts, and I don't disagree, that "a long-shot wild-card run might not be out of the question."  But even "if this year is a write-off, the team will be more enjoyable to watch than it has been the last four years, if only because the franchise is finally moving forward."

If you are a Met fan, it is not unreasonable to continue to fear the worst.  But, come on, the season hasn't even started yet.

[Related posts:  Hope Springs Eternal]

Sunday, March 27, 2011

Labor History Matters

Mural at Maine's Dept. of Labor
I am not a big fan of President Clinton.  But one of his best moments was appointing Robert Reich to be Secretary of Labor.  Reich, now a professor at UC Berekely, remains a brilliant, insightful and progressive voice on politics, economics and labor.  His most recent book is Aftershock: The New Economy and America's Future.  In his latest blog post, which he has allowed me to re-post here, Professor Reich writes about Maine Governor Paul LaPage ordering the removal of the state labor department's 36-foot mural depicting the state’s labor history.  This is emblematic, as Reich states, of "the current Republican assault on workers – on their right to form unions, on unemployment insurance and Social Security, on public employees, and even (courtesy of Governor LePage) on our common memory . . ."  In Reich's words, this is "so despicable." and "it’s why we need a President who will fight for workers and fight against this assault." 

Why Governor LePage Can’t Erase History, and Why We Need a Fighter in the White House

By Robert Reich, March 23, 2011

Maine Governor Paul LePage has ordered state workers to remove from the state labor department a 36-foot mural depicting the state’s labor history. Among other things the mural illustrates the 1937 shoe mill strike in Auburn and Lewiston. It also features the iconic “Rosie the Riveter,” who in real life worked at the Bath Iron Works. One panel shows my predecessor at the U.S. Department of Labor, Frances Perkins, who was buried in Newcastle, Maine.

The LePage Administration is also renaming conference rooms that had carried the names of historic leaders of American labor, as well as former Secretary Perkins.

The Governor’s spokesman explains that the mural and the conference-room names were “not in keeping with the department’s pro-business goals.”

Are we still in America?

Frances Perkins was the first woman cabinet member in American history. She was also one of the most accomplished cabinet members in history.

She and her boss, Franklin D. Roosevelt, came to office at a time when average working people needed help – and Perkins and Roosevelt were determined to give it to them. Together, they created Social Security, unemployment insurance, the right of workers to unionize, the minimum wage, and the forty-hour workweek.
Big business and Wall Street thought Perkins and Roosevelt were not in keeping with pro-business goals. So they and their Republican puppets in Congress and in the states retaliated with a political assault on the New Deal.

Roosevelt did not flinch. In a speech in October 1936 he condemned “business and financial monopoly, speculation, reckless banking, class antagonism, sectionalism, war profiteering.”

Saturday, March 26, 2011

Real Shared Sacrifice

Sen. Bernie Sanders
Shared sacrifice seems to be a popular sentiment these days (a google news search on the term got me over 1,500 hits in the past month) but it is nowhere reflected in what is going on in Washington. For example, as I noted recently, the Republicans would like to cut food aid to the poor so they can save aid for agrobiz. But some congressional Democrats are actually trying to make the phrase mean something. They are proposing tax increases for those who make more that $1 million. Now with the House controlled by Tea Bagging nutters there is little chance of this happening but it is exactly the kind of political move the Democrats need to make. A nice, clean, simple message. The Republicans want to cut budgets for education but protect millionaires.

Will Obama go with this. The folks sponsoring the legislation don't seem to think so.
[Senator Bernie] Sanders did not express much confidence that the White House would get on board with his proposal, which he has framed as a way to fund the government this year without making crippling cuts to important programs.
“We have not heard – and I’m extremely disappointed, but not surprised – but we have not heard that the president has indicated that he is interested in coming up with revenue, just that he wants to negotiate with Republicans on spending cuts,” Sanders said.
I'm afraid that Sanders is almost certainly right. As I've also said before (in my very first post here), Obama gave up the fight when he bought into the Republican framing that the deficit was the problem to deal with rather than jobs and then essentially ruled out raising revenue as a way to deal with that problem when he made the horrible tax deal in December. That left only slashing spending which, as Lovechilde recently wrote, is a really stupid thing to do in a recession.

It's nice that at least some Democrats are fighting back against at least some of the idiotic budget policies being promoted in Washington. It is just too bad the President does not appear to be one of them.

Great Jazz Albums (IMO) #26

Art Pepper.  Art Pepper Meets The Rhythm Section (1957).  Art Pepper on saxophone with Miles Davis' rhythm sectionRed Garland on piano, Paul Chambers on bass and Philly Joe Jones on drums.  How could this not be a great album?  Well, as legend would have it, Pepper was informed of the recording date on the morning it was scheduled, had a saxophone that was in disrepair, and was suffering from heroin addiction.  In any event, "the music produced from this chaos has been described as "a diamond of recorded jazz history."  As one review states, the result was "a seamless match of styles and approaches that showcases the skills of all four master musicians."  Art Pepper, another critic wrote, was one of very few alto saxophone players in the 1950s "that was able to develop his own sound despite the dominant influence of Charlie Parker."  Notwithstanding a career that was repeatedly interrupted by drugs and drug-related incarceration, Art Pepper's playing was consistently great. This album is one of his best.

[Related posts:  Really Great Jazz Albums,  #1 (Hank Mobley); , #2 (Horace Silver), #3 (Sonny Rollins), #4 (Sonny Clark), #5 (Dexter Gordon), #6 (Cannonball Adderley), #7 (Bill Evans), #8 (McCoy Tyner), #9 (Clifford Brown), #10 (Sinatra), #11 (Monk), #12 (Kenny Dorham), #13 (Coltrane), #14 (Duke Ellington), #15 (Miles Davis), #16 (Wayne Shorter), #17 (Dinah Washington); #18 (Sarah Vaughan); #19 (Stan Getz); #20 (Blue Mitchell); #21 (Gene Ammons); #22 (Art Blakey and the Jazz Messengers); #23 (Red Garland); #24 (Ella Fitzgerald); #25 (Charlie Parker)]

Friday, March 25, 2011

Palate Cleanser: The Strokes



Under Cover of Darkness by The Strokes

Economics For Dummies

It is up to Paul Krugman, once again, to explain that "slashing spending in the face of high unemployment is a mistake."  (See, e.g., What Krugman Said; Must Read Krugman.)

There used to be a consensus that the twin problems caused by the financial crisis -- huge budget deficits and soaring unemployment -- "had to be tackled in sequence, with an immediate focus on creating jobs combined with a long-run strategy of deficit reduction."  But, as Krugman maintains, "these days you’re not considered serious in Washington unless you profess allegiance to the same [austerity] doctrine that’s failing so dismally in Europe."  Krugman explains that "cutting spending in a deeply depressed economy is largely self-defeating even in purely fiscal terms: any savings achieved at the front end are partly offset by lower revenue, as the economy shrinks." 

While, "a serious fiscal plan for America would address the long-run drivers of spending, above all health care costs, and it would almost certainly include some kind of tax increase," these things are not even being discussed.  There is no serious discussion of "using Medicare funds effectively" and "the official G.O.P. position — barely challenged by Democrats — appears to be that nobody should ever pay higher taxes."  So what we are left with is "talk is about short-run spending cuts."  As Krugman concludes, "we have a political climate in which self-styled deficit hawks want to punish the unemployed even as they oppose any action that would address our long-run budget problems."

It is infuriating that with few exceptions (see Debate Shift), Obama and his fellow Democrats continue to buy into the Republican frame that requires tightening our belts and cutting domestic programs.  (See Why Can't Democrats Do The Right Thing.)  They fail to see that it is both economically and politically unsound to continue to focus on the deficit and spending cuts rather than job creation and investment.  As Krugman says, "jobs now, deficits later . . . is the right strategy."

Thursday, March 24, 2011

Republicans Love/Republicans Hate Episdode 2

Republicans love: Subsidies for Big Agriculture, even for farmers that are not farming.

Republicans hate: Helping poor people buy food (see above). Especially if they have the nerve to be union members.

This has been another episode of Republicans Love/Republicans Hate

Fear Of Truth And Justice

A couple of weeks ago, the Supreme Court decided Skinner v. Switzer, which held that a Texas death row inmate could file a lawsuit under the federal civil rights statute to obtain DNA testing of evidence that might prove his innocence.  What struck me upon reading the decision was how bizarre it was that Mr. Skinner (who was lucky to have secured an extraordinary post-conviction lawyer, Rob Owen) had to struggle so mightily -- indeed, all the way to the Supreme Court -- merely to have evidence tested that might be the difference between whether he lives or dies, and how hard the District Attorney fought to prevent him from doing so.

Locke Bowman, Legal Director of  the MacArthur Justice Center, wrote a great piece in The Huffington Post about the unjustifiable and shameful unwillingness of  prosecutors to permit death row inmates to obtain DNA testing that might expose a miscarriage of justice in their cases.  Locke has very graciously allowed me to cross-post his article here.

Fearing Truth:  Why Do Prosecutors Fight Against Post-Conviction DNA Tests?

by Locke Bowman, March 22, 2011

In the tortured logic of Henry Skinner's 16-year battle to show he didn't commit the brutal triple murder that landed him on the Texas Death Row, Monday, March 7, 2011, was a good day--sort of.

Since his 1995 conviction and death sentence, Skinner has been asking for a DNA test on crime scene evidence (the murder weapons, the victims' fingernails, vaginal swabs from one victim) that could potentially identify someone else as the killer. Skinner's lawyer failed to demand this testing prior to trial. So Skinner has filed multiple petitions in the Texas courts asking for post-conviction DNA testing, including two petitions filed under a Texas statute that specifically allows for such forensic testing when it will serve "the interests of justice." The Texas courts denied all of these petitions.

Two years ago, Skinner filed a case in federal court saying that the State of Texas had violated his right to procedural due process by disallowing his repeated attempts to have the evidence tested. But the federal court threw that case out on a technicality: as a convicted prisoner, Skinner wasn't allowed to raise issues about his criminal case under the civil rights law, the statute Skinner's case invoked, but instead had to bring his challenge under the federal habeas corpus act.

This brings us to March 7. The U.S. Supreme Court, which had accepted Skinner's case for review, issued an opinion that day reversing the lower federal courts, ruling that Skinner is entitled to challenge the Texas post-conviction procedure and holding that he'd filed under the proper statute. The lower court will have to decide the merits of Skinner's claim.

It's better for Skinner to have won than lost. Now, at least, he can argue that Texas was wrong to deny him the DNA tests he needs to prove his innocence. But the local Texas District Attorney can be depended upon to continue her tooth and nail fight to prevent the tests. The recent Supreme Court decision (though it's been widely applauded as a victory for justice) stops well short of saying that Henry Skinner will actually get the DNA testing he so obviously deserves before the State of Texas executes him.

Skinner is not the only prisoner to have petitioned unsuccessfully for years for a simple DNA test. Closer to home, in Peoria, Illinois in 1977, Johnnie Lee Savory (then only 14 years of age) was found guilty of killing two other children with a knife. The State introduced a pair of bloody trousers that had been seized from Savory's home and argued to the jury that the blood on the trousers belonged to the victims. During his more than 30 years in prison, Savory insisted he did not commit the crime. He asked for a DNA test of the blood on the trousers (and on scrapings taking from the victims' fingernails) to help prove his innocence. The Peoria County State's Attorney adamantly opposed the test--and, in 2001, the Illinois Supreme Court (in one of that court's more disappointing opinions) refused to permit it.

Later, after Savory was finally released on parole, he filed a civil rights case (much like the one Skinner brought) arguing that Illinois violated his constitutional rights by denying him access to the evidence so that he could do DNA testing to clear his name. The federal court adopted the State's arguments and concluded that Savory--who had been petitioning for years in the state courts for a DNA test--had waited too long to bring his federal case.

In the aftermath of the 1997 execution of James O'Dell, the Commonwealth of Virginia fought mightily (and successfully) to prevent DNA testing of seminal fluid recovered from the victim that could have shown that O'Dell had been executed for a rape and murder he did not commit. In a legal filing, Commonwealth officials candidly explained their position: if there was no match between O'Dell's DNA and the crime scene evidence, they argued, "it would be shouted from the rooftops that the Commonwealth of Virginia executed an innocent man."  Indeed.

Wednesday, March 23, 2011

Trial On Steroids

So many people in and out of baseball hate Barry Bonds passionately.  He was a selfish player who focused unduly on his own statistics.  He is arrogant and unapologetic.  He has always treated the press with great disdain.  He had his own Barcalounger in the Giants' clubhouse.  Unlike, perhaps, more sympathetic marginal or fading players, he was a brilliant player in his prime when he felt compelled to cheat by using steroids.  He is a petty man who cheated because he was jealous of Sammy Sosa and Mark McGwire, and wanted to become not just the best all around player, but the home run king.  And it worked; he not only broke McGwire's single-season home run record, even more egregiously, he eclipsed the hallowed career home run mark of the beloved Hank Aaron.  Have I missed anything?  Oh, and he denied knowingly taking steriods when forced to testify under oath before a grand jury.

For the last of these, Bonds is on trial, charged with lying to the grand jury and obstruction of justice.  It seems, however, that those who hate Barry Bonds hope he is humiliated, found guilty, and sentenced to a long prison term for his many other other non-criminal offenses.

I am not one of the Barry Haters.  Watching Barry Bonds play for the Giants, both pre- and post-alleged steroid use was one of my greatest thrills as a baseball fan.  Every time I went to the ballpark I felt it was a privilege to be able to see one of the most amazing players to have ever played.  In 2001, the year he hit 73 home runs, he hardly ever got a decent pitch (he walked 177 times that year), but when he did he crushed it.  Maybe steroids added some distance to these blasts, but the discipline, focus, timing and beauty of these at bats can't be credited to drugs.  The dude could flat out hit.

OK, with that disclaimer out of the way, I think the issue is less about Bonds and more about whether the United States Government should be expending so many resources on the use of performance enhancing drugs in baseball.  We now know that steroid use was rampant for about a decade, beginning roughly in 1995.  During that time, offensive numbers (and players’ heads) were suspiciously inflated, fueling a welcome fan resurgence after the devastating baseball strike of 1994.  Attendance soared and baseball ownership gleefully looked the other way.  While all other major sports put policies into place banning steroid use, baseball management did nothing.

I strongly believe that the federal government can play an important role in investigating and remedying many of our social ills, including, for example, poverty and hunger, discrimination, deceptive practices of financial institutions, unsafe food production, inhumane working conditions, environmental hazards and climate change. Steroids in baseball does not come close to making this list.  Nevertheless, we have had federal investigations, grand juries, and even Congressional hearings to address an issue that should have been -- and eventually was -- handled by baseball itself.  (Roger Clemens, for whom I have no warmth in my heart, will be tried this summer on allegedly lying to Congress; I take the same position on Clemens as I do on Bonds.)

In 2002, a federal investigation began into whether BALCO labs was providing steroids to athletes, including baseball players.  Barry Bonds and others testified before a grand jury which, in 2004, issued a 42-count indictment charging BALCO-related figures with running a steroid-distribution ring.  40 of these charges were eventually dropped.  The main target, Victor Conte, BALCO's founder, pleaded guilty to one count of money-laundering and served only 4 months in prison followed by 4 months' home confinement.  BALCO's vice president James Valente received probation.  Greg Anderson, Bonds' personal trainer, received 3 months in prison and 3 months home confinement, although he served additional time for refusing to testify against Bonds.

Given the relatively light sentences received by the major players in the scandal it is hard to see the dogged pursuit of Barry Bonds by federal prosecutors as anything more than vindictive, ego-driven and an attempt to justify the enormous waste of time and resources.  The scandal derailed the end of his career, when no team was willing to sign him.  His legitimate claim to being one of the greatest ballplayers of all time, even before his alleged steroid use, and all his remarkable records are considered tainted by many.  And, as I started this piece, he is reviled by all but the most die-hard Giants fans (and me).  Isn't that enough?

[Related posts:  Hall of Fame On Steroids; Living Legends]

Wilco Wednesdays: Muzzle of Bees



Muzzle of Bees by Wilco

Tuesday, March 22, 2011

Macro Economics

The big banks loathe Ms. Warren, who has made a career out of pointing out all the ways they gouge financial consumers — and whose primary goal is to make such gouging more difficult. So, naturally, the Republicans loathe her too. That she might someday run this bureau terrifies the banks. So, naturally, it terrifies the Republicans. -- Joe Nocera, N.Y. Times

Rather than writing the same thing over and over again, I should create a keyboard macro to save time.  An issue invariably arises, usually involving the economy, which provides a golden opportunity for the Democrats to demonstrate that they are the Party that cares about regular, working people while the Republicans are shamelessly in the pocket of Big Business and the ultra-wealthy.  Extending the Bush tax breaks is a perfect example.  The current budget debate in which the Republicans only want to cut domestic programs but nothing else and are threatening to shut down the government is another.  All the Democrats have to do is stay united and stay principled.  But other than a few lonely progressives, the Democrats, including the President, invariably cave and their message remains forever muddled.

Here they go again.  If the Democrats could ever be savvy enough to create a symbol to demonstrate their zeal for protecting the public from the greed, corruption and unaccountability of the financial industry it would be Elizabeth Warren.  She is a brilliant Harvard law professor who argued for a new agency to protect consumers before the financial crisis hit.  She chaired the Congressional Oversight Panel tasked with investigating the bank bailout, where took on the financial giants as well as the government.  She also comes across as warm and earnest, speaking in plain-spoken terms with a southern accent. 

Elizabeth Warren has been tasked by President Obama with setting up the new Consumer Financial Protection Bureau, which was a key part of the reforms that were passed in the wake of the financial meltdown.  An independent agency that will be operational in July, it will have the power to regulate credit cards, mortgages and other financial products.  Last week, Warren appeared before Congress and explained the agency's goals: "We firmly believe in the importance of making prices clearer, making risks more obvious, and cutting back on the fine print and legalese that can make it impossible for families to compare a mortgage or credit card with two or three others."

Naturally, the Republicans want to skewer Elizabeth Warren and gut the power of an agency that is being set up to protect ordinary Americans from big financial institutions.  According to news reports, the Republicans are concerned the agency will be "too powerful and are trying to portray Warren as the "unaccountable" head of a bureaucracy immune from oversight.  They want to cut its funding and control what's left by replacing a single director with a 5-member board.

CNN reported that "the hearing was one of the more hostile Warren has yet faced on Capitol Hill."  Joe Nocera in the Times described her as being treated by Republicans like a "pinata."  Paul Krugman wrote that the Republicans "lined up to grill and attack" her even though the accusations made no sense.  According to Krugman, the point was "to ensure that neither she nor anyone with similar views ends up actually protecting consumers."  He explained that for Republicans, "people like Ms. Warren . . . who warned that we were heading for a debt crisis before it happened" threaten their attempts to revise recent history and argue that the financial crisis was caused by too much regulation, not too little. "Such people must therefore be demonized, using whatever tools are at hand." 

One key question remains is who will be appointed to run the agency.  Elizabeth Warren is the obvious choice.  Krugman again: 
Given Ms. Warren’s prescience and her role in shaping financial reform legislation — not to mention her effective performance running the Congressional panel exercising oversight over federal financial bailouts — it was only natural that she be appointed to get the new consumer protection agency up and running. And it’s hard to think of anyone better qualified to head the agency once it goes into action.  The fact that she’s so well qualified is, of course, the reason she’s being attacked so fiercely. Nothing could be worse, from the point of view of bankers and the politicians who serve them, than to have consumers protected by someone who knows what she’s doing and has the personal credibility to stand up to pressure.
And this is where the opportunity comes for the President and his fellow Democrats.  Krugman wonders whether "the Obama administration will see the war on Elizabeth Warren for what it is: a second chance to change public perceptions" about who is truly to blame for the financial crisis.  "By the sheer craziness of their attacks on Ms. Warren, however, Republicans are offering the administration a perfect opportunity to revive the debate over financial reform, not to mention highlighting exactly who’s really in Wall Street’s pocket these days. And that’s an opportunity the White House should welcome."

Monday, March 21, 2011

Meanwhile, In Afghanistan . . .

As we become enmeshed in yet another war, is anyone paying attention to America's longest?  AP reports that 1,399 members of the U.S. military have died since the U.S. invasion of Afghanistan in 2001.  We don't know how many Afghanis and Pakistanis have been killed by our forces and our drones, but the casualties continue to mount.  There are too many horror stories about the killing of innocent civilians, such as the one this month where nine boys collecting firewood in eastern Afghanistan were killed by NATO helicopter gunners who mistook them for insurgents.  Corruption is rampant and even our supposed ally, Hamid Karzai, who is still president thanks to a fraudulent election, is asking that we leave.  Despite the 30,000 additional troops added by President Obama last year, which brought the total number of American forces to 100,000, the Taliban, in the recent words of General Petraeus, remain "resilient."

Gen. Petraeus reported to Congress last week that the recent gains against the Taliban are "fragile and reversible."   His cautiously hopeful view was more optimistic than other analysts who, as the Los Angeles Times noted, contend "the Taliban still holds sway over much of the Afghan population and territory and remains a significant political and military force," there has been inadequate progress in reforming President Karsai's corrupt regime, and "Pakistan remains a haven for terrorists."

According to the New York Times, Petraeus said he is still "preparing options" for the withdrawal that is set to begin in July, casting doubt on its size, and he was non-committal about whether combat troops will be part of the initial draw down.  It also seemed clear from his remarks that substantial reductions are not expected until 2014.  

It is true that Japan is a far more catastrophic and immediate crisis, and the rebellions in Arab nations are more volatile, but even before the emergence of these events it seemed that the media, the Congress (with a few notable exceptions) and the public were not concerned about Afghanistan and were resigned to the ongoing muddle until at least 2014.  This is exemplified by the apathetic response to General Petraeus' testimony.  As Doyle McManus described in the L.A. Times, "most of the seats in the public and news media sections were empty. Senators and House members drifted in and out, just as they do in hearings about farm price supports or bank reform."

With over $450 billion already spent on the war, President Obama has asked for another $113 billion in his 2012 budget.  A bill sponsored by Rep. Dennis Kucinich which called for a speedy withdrawal from Afghanistan, and highlighting the cost, was designed to appeal to fiscal conservatives, was defeated last week, although it garnered 93 votes (a similar resolution won 65 votes last year.)  And even though no one appears to be paying attention, at least when asked there is strong opposition to our continued presence, as a recent Washington Post-ABC poll shows that nearly 2/3 of Americans no longer believe the Afghan war is worth fighting.

While Kucinich's bill failed, he is on the right track by asking  "Congress to exercise fiscal responsibility" and determine, as badly needed funds are cut from many government programs, whether the incremental progress that is being made is worth it.  (ThinkProgress lays out some of the alternatives that could be funded for the cost of one year of the war.)  His fellow Democrats in the House and Senate should be making a strong push for withdrawal.  Like so many other issues, this is one in which the best policy is also the best politics.

Sunday, March 20, 2011

Great Jazz Albums (IMO) #25

Charlie Parker.  Charlie Parker with Strings:  The Master Takes (1995; recorded 1947-1952).  Charlie "Bird" Parker is probably the greatest saxophone player of all time and, after Louis Armstrong, the most influential jazz musician.  As Gary Giddins wrote in Visions of Jazz, "Parker was the only musician after Armstrong to influence all of jazz and almost every aspect of American music -- its instrumentalists and singers, composers and arrangers."  His seminal recordings in the mid-to-late 1940s (especially those on Savoy and Dial) are remarkable for displaying Parker's brilliant playing and creative genius, and also as historic landmarks of the development of  bebopCharlie Parker with Strings is a departure, and at the time considered by purists to be a commercial sell-out.  Recorded with a small orchestral string session and jazz rhythm section, Parker forgoes the breakneck speed typical of his earlier recordings for a more lyrical and simplified approach.  The album consists of standards instead of original compositions, and the highlights, of which there are many, include Just Friends and April in Paris.  As one critic put it: "The music on this collection is lush, poetic, romantic as hell, and the perfect antidote to a surfeit of jazz records featuring undisciplined blowing. There's a lot of jazz, but there's only one Bird."

[Related posts:  Really Great Jazz Albums,  #1 (Hank Mobley); , #2 (Horace Silver), #3 (Sonny Rollins), #4 (Sonny Clark), #5 (Dexter Gordon), #6 (Cannonball Adderley), #7 (Bill Evans), #8 (McCoy Tyner), #9 (Clifford Brown), #10 (Sinatra), #11 (Monk), #12 (Kenny Dorham), #13 (Coltrane), #14 (Duke Ellington), #15 (Miles Davis), #16 (Wayne Shorter), #17 (Dinah Washington); #18 (Sarah Vaughan); #19 (Stan Getz); #20 (Blue Mitchell); #21 (Gene Ammons); #22 (Art Blakey and the Jazz Messengers); #23 (Red Garland); #24 (Ella Fitzgerald)]

Friday, March 18, 2011

Many Questions; War Is Not The Answer

There are many questions about the parameters of the broadly worded U.N. Security Council resolution to take “all necessary measures” to “protect civilians and civilian populated areas under threat of attack” in Libya and about our country's role.  And, so far, there are not nearly enough answers to justify U.S. involvement.

First, the resolution portends a far greater commitment than a no fly zone, which was already problematic.  As the Times reports, the language "was written in sweeping terms to allow for a wide range of actions, including strikes on air-defense systems and missile attacks from ships."  According to defense expert Robert Chesney, it is not only air power that has been authorized.  “Foreign occupation forces” are barred, but, as Chesney points out, this prohibition does not include all ground forces, only "occupation" forces.

Given this broad mandate for action, what happens next?  While Qaddafi has announced a cease fire in response to the U.N. resolution, it is hard to imagine that he is simply going to abide by it or allow the rebels to keep the land they currently control.  As Steve Benen says:  "Even if a cease-fire holds, it's unclear what kind of agreement would (or could) be reached between Qaddafi and the rest of the country that no longer intends to live under his rule. Does the West intend to allow Qaddafi to stay in power . . . and what happens if/when he resists?"

Spencer Ackerman quotes defense expert Andrew Exum, who questions whether there is authorization to continue to "press the advantage of the rebels until [Qaddafi's] government falls?"  Exum also wonders whether there will  be a long civil war, and if we will take sides.  As Adam Serwer asks, do we really know who the rebels are and what they ultimately want?  Massimo Calabresi at Time asserts that while it is possible rebel leaders could align themselves with us, "there has never been a powerful central state in Libya, and the country is split along tribal lines. There is little of the civil society or established middle class . . .  of more developed countries that have peacefully made the transition to democracy from authoritarianism."  In addition, part of the country that has fueled the uprising is where "much of Libya's Islamic radicalism" has been harbored.  The bottom line is that no one can predict what will emerge from a regime change.

A more fundamental question is whether we should be intervening at all?  Is Qaddafi actually committing war crimes with widespread atrocities and mass killing of innocent civilians?  While that would constitute humanitarian grounds for intervention, as Massimo Calabresi states, the Administration has so far refused to provide such evidence and "most of the reports coming out of Libya appear to indicate that the violence is between armed rebels and forces loyal to Qaddafi." 

And, finally, there is that old thorny question of separation of powers. The Constitution gives Congress, not the president, the power "to declare war."  While the president does have the power to act in self-defense, Qaddafi's use of force is not a domestic threat to the United States.  So, isn't President Obama required to get explicit authorization from Congress before instituting military action?

With so many unanswered questions it is deeply troubling that the United States is about to embark on yet another military action.  "All we really know right now," as Adam Serwer concludes, "is that America is destined to own the outcome in Libya."

[Related posts:  Libyan Intervention Won't Fly]

Palate Cleanser: Spoon



The Ghost Of You Lingers and Got Nuffin by Spoon from La Blogotheque - TakeAwayShows, Jan. 10, 2011. Stay tuned for Part II.

Click and Clack

This is what is of critical importance to Republicans.  The Rules Committee of the Republican-controlled House of Representatives held an emergency session to expedite a bill to ban federal funds from going to NPR.  The bill was then quickly passed in the House by a vote of 228-to-192.  All the Democrats who were present and seven Republicans voted against the bill, which has no chance of even reaching the floor of the Senate.  Another symbolic vote to appease the Republican base and, as a New York Times editorial stated, to send a "punitive message" to an organization that is considered liberal by the right.

Rep. Anthony Weiner (Dem-NY) treated the Republicans' action with an appropriate measure of sarcasm:

People Against Monsanto

Another great post from Marcia about burgeoning campaigns that demand the labeling of genetically modified foods, initiating independent, long-term studies on the safety of GMOs, and protecting organic farmers.  This originally appeared on PAN's website (Pesticide Action Network).

People Against Monsanto

by Marcia Ishii-Eiteman, March 16, 2011

Two weeks ago, I wrote about the American public’s nearly unified demand for labeling of GMOs. Now, across the country, people are preparing to take to the streets to express their views.

The Millions Against Monsanto campaign is organizing a Rally for the Right to Know in front of the White House on Saturday, March 26. And plans for local rallies are popping up everywhere, including — last I checked — in California, Colorado, Florida, Indiana, Minnesota, Oregon, Tennesee and Wisconsin.

These rallies against Monsanto have four common demands:
  1. We have the right to know and want genetically modified foods labeled;
  2. We want factory farmed animal and genetically modified animal products labeled;
  3. We want independent, transparent, long-term studies done on the safety of GMOs for animals, plants and humans; and
  4. We want the organic industry protected from cross-contamination and law suits against organic farmers.
Around the world, farmers are already uniting as never before to reject GE seeds and assert their right to save seed. This has been articulated most recently in the Bali Seed Declaration, released this week by La Via Campesina. Perhaps we're beginning to see new momentum growing in this country too, following the example of our European cousins who just a few months ago delivered a letter from over one million Europeans (from Europe’s 27 countries!) to the European Union, demanding a moratorium on GE crops and calling for a “GE-free Europe.”

A month without Monsanto

If you can’t make it to a rally on either side of the Atlantic, you might follow Los Angeles writer April D├ívila’s example and go on a personal GE-free journey in your own kitchen.

After deciding to go a month without Monsanto, April expressed surprise at how hard it was to find food made without Monsanto’s GE products — a job obviously made much harder by the lack of labeling, as Mark Bitman of the New York Times has pointed out.

She quickly learned that buying organic, avoiding high-fructose corn syrup and being careful about the source of her meat were the best ways to keep herself GE-free. By the end of her month, she happily concluded, “Once I started making the effort to avoid it, I found something else that surprised me: the confidence that comes from really knowing what I’m eating.”

Holding corporations liable for GE harms

Labeling is a very important first step towards transparency in our food system. But even as we fight for our right to know, farther upstream farmers and ranchers — organic and conventional alike — face the potentially catastrophic effects that GE contamination poses to their farms and livelihoods.
Thus it is equally important that we establish the means and mechanisms to hold patent-holders (Monsanto and other agricultural biotech corporations) liable for the economic, environmental and health harms that their GE products may cause.

The National Organic Coalition is working hard on this. As part of its Seven Steps to Fair Farming, they've come up with a Contamination Prevention and Contamination Compensation Plan. This month's rallies across the country will help build the momentum needed to move important initiatives like these forward.

Marcia Ishii-Eiteman is a senior scientist at the Pesticide Action Network of North America (PAN).

Thursday, March 17, 2011

The Graphic Details: A Comic Book Review

[A new contributor to Fair and Unbalanced, sasqi is the pseudonym for a poet, academic and dear friend.  Among many other things, she is a Lecturer in Writing at U.C. Santa Cruz.  -- Lovechilde]

Dear baby boomers, children of boomers, boomer-lovers, and anyone else who realizes we’re all going to die: I need to recommend the comic-form memoir Special Exits: A Graphic Memoir by Joyce Farmer, even though I just put it down and said to my husband, “this is not recommendable.” I uttered that because the book is about a woman's two aging parents and the mundane details of their last years. It is an incredibly smart portrayal of the way two elderly people (Lars and Rachel, pseudonyms for Farmer’s parents) slog onward in the face of their obviously imminent demise and of the way their middle aged daughter “Laura” attempts to take care of them. Farmer somehow manages to get humor into the most grimace-inducing emotional episodes, episodes which apparently took place many years before she was able to put them down on paper. But overall this book is not funny or uplifting.  The book ponders dying, not death, and Farmer is candid in her assessments.

There is a deep compassion that resides inside Farmer’s dark and meticulously-drawn panels, a compassion which wants to find an alternate reality about what happens when we age--but doesn’t. Farmer’s realistic visual style, accompanied by verbal reminders that her parents’ last years take place, for the most part, in the same house, eating the same food, and saying the same things, reveal a daughter’s quiet horror about the monotony of the aging process. She plays with this by mimicking the traditional panel captions used in comics to tell readers about elapsed time. “Another day,” “Some weeks later,” “Time marches on,” and “Another day, another test” all make appearances at the top of a new page. A reader begins to feel the eventuality of it all.


[Read more after the break]

Don't Take The 14th Amendment For Granted

Originally enacted to protect blacks from inequality and violence after the Civil War, the 14th Amendment prohibits states from depriving persons of "life, liberty, or property" unfairly (i.e., without due process) and from denying any person "equal protection of the laws."  Efforts to weaken the 14th Amendment as a tool to fight discrimination have persisted since its enactment and continue today.  As Eva Paterson, President of the Equal Justice Society, contends in the following piece (originally posted on Huffington Post) we must safeguard the 14th Amendment from both frontal and stealth attacks.

Protecting the 14th Amendment

By Eva Paterson, March 16, 2011

For almost 150 years, the 14th Amendment has been the backbone of civil rights law in America. Its protection of individual rights for all -- from freed slaves to immigrants to workers fighting against race discrimination -- has made this amendment an honorary member of the Bill of Rights.

No wonder it is under attack.

In recent months, Republican Senators and state legislators have sought the public spotlight by calling for an end to the amendment's guarantee of citizenship to those born on U.S. soil. If a child's parents are not documented, they shout, that child should not be allowed to be a citizen. If they had their way, they would roll back a U.S. Supreme Court decision, U.S. v. Wong Kim Ark, decided more than a century ago.
If this is what the enemies of the 14th Amendment are doing in the spotlight, imagine what they are doing behind the scenes to eviscerate the measure. Those who want to turn the clock back on civil rights also are trying to undo the Amendment's Equal Protection clause, making it virtually impossible for victims of discrimination to find justice in our courts.

First, a short history. The 14th Amendment was added to the U.S. Constitution in 1868, promoted by the Republican Party of the time -- the party of Lincoln -- to protect Blacks from the violence and inequality they faced in the aftermath of the Civil War. The Amendment granted the rights of citizenship to all individuals born in the U.S., including freed slaves. It guaranteed African Americans the right to citizenship, and to the privileges and immunities that go along with citizenship.

Almost immediately after it was enacted, lawmakers began trying to chip away at the Amendment, defining it so narrowly as to make it almost toothless. As Lawrence Goldstone outlines in his powerful new book, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, one of the first salvos against the 14th Amendment took place in the 1870s, following the "Colfax Massacre." After a disputed gubernatorial race, several hundred white men attacked freed slaves in Colfax, Louisiana. More than 100 Black men are estimated to have been killed. Though a few of the white mob were charged in federal court, only three eventually were convicted. Later, the U.S. Supreme Court overturned even those convictions in the case of United States v. Cruikshank, finding that the 14th Amendment did not apply to individuals, only the state.

In another pair of cases just a decade later -- Strauder v. West Virginia and Rives v. Virginia -- the nation's high court would go even further in eroding of the 14th Amendment. In Strauder, an African American man was convicted of murder by an all-white jury, and he appealed. The Supreme Court found that West Virginia's statute explicitly stating that African Americans were not allowed to serve on juries did violate a Black defendant's right to a fair trial and was unconstitutional under the 14th Amendment. However, in Rives, the Court upheld the convictions of two African Americans by an all-white jury in Virginia. The reason? Virginia did not have an explicit law on its books that barred Blacks from serving on juries, even though it did so in practice. As a result, states could find ways to segregate, discriminate against, and exclude Blacks without being found in violation of federal law and the 14th Amendment.

The political attacks became even stronger after the successes of the civil rights movement. The Amendment's Equal Protection Clause became the basis for the U.S. Supreme Court's 1954 ruling in the landmark case Brown v. Board of Education, which ended the doctrine of "separate but equal." It gave new hope and legal strength to millions who challenged legalized segregation and race discrimination. When President Lyndon Johnson signed the Civil Rights Act of 1964, he was well-aware that the enemies of equal rights would not sit quietly by, noting wryly, "we just gave the south to the Republicans."

The biggest legal blow came in 1976, when the U.S. Supreme Court decided Washington v. Davis. Two African-American applicants who failed personnel tests for jobs as police officers in Washington, D.C., alleged that the test was unconstitutional because it disproportionately failed Blacks, excluding them from work at the police department. They were backed by clear scientific evidence showing that the tests did disproportionately impact Blacks. But because the plaintiffs could not show that the racial inequality was intentional, the Court ruled that the Constitution was not violated. The standard the court set in that case is known as the "intent doctrine."

This crowning blow to the gradual erosion of the 14th Amendment's protections currently bars countless victims of discrimination from seeking justice in the courts. Though George Wallace is no longer chanting "segregation now, segregation tomorrow, segregation forever" on the school house steps, race-based disparities still persist in almost every measure of societal well-being -- from employment, health, and education to wealth, housing, and the criminal justice system. When racial bias is implicit or structural, it makes no sense to require proof that these disparities result from "intentional" discrimination.

Our embattled 14th Amendment deserves to be safeguarded both from frontal and stealth attacks. We must first shed sunlight on the insidious efforts to do away with this bedrock principle. Then, we must return to the courts - yes, even the United States Supreme Court - and insist that the full Constitution be upheld, including the 14th Amendment. Civil rights advocates must not cede the ground to those who would deny us equal protection of the law. We're ready to fight; join us.

[Related posts:   Federal Court Can't Remedy Structural Racism; Reclaiming the 14th Amendment]