Saturday, March 22, 2008 - Posts
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Eric, you changed the topic on me and perhaps misunderstood. The conversation was about the politics of abortion and Republican coalition--no one is questioning the sincerity of belief of many who would like to see Roe overruled and abortion banned.
Do you doubt that the legislation I described would likely increase the total number of abortions? My point was that the kind of legislative initiatives that come out of the "Republican coalition" you were discussing does not actually accomplish a reduction in abortions. (And that the primary prochoice organizations do work hard toward that goal.) That may also well reveal that some (not all) such political forces are more interested in objectives other than reducing the number of abortions. Among them may be controlling the nature and understanding of motherhood and diminishing women's equality and sexual freedom (and even where those are not objectives, they may provide strong influences). For the many who sincerely would like to reduce the number of abortions, that desire provides the basis for education about the true effects of the legislation and the possibility for instead forging common ground policies that promote pregnancy prevention and healthy childbearing.
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Benjamin and Emily appear to agree that, as he puts it, "[t]o the extent the eventual convictions of KSM et al rely on coerced testimony, even indirectly,... the Defense Department should not put them to death." But should the prospect of execution alone be the only concern? Benjamin does proceed to discuss "clean convictions," implying the answer is "No."
At least since the days of Mapp (1961) and Wong Sun (1963) -- or, for that matter, Bram (1897) -- the question of tainted evidence has arisen 1st and foremost at the guilt/innocence phase. If it's addressed properly there, most likely there'd be no cause for reconsideration-in-mitigation at sentencing. Seems a simple enough premise. Yet it's one away from which the U.S. criminal justice system's seemed to have moved in recent years. Example of this shift: the widely shared notion that it's a victory when a tainted-for-whatever-reason capital sentence is commuted to life.
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Dawn, you've hit the nail on the head. What hypocrites! To think that we would believe that they are against abortion just because they are trying to shut down abortion clinics. I hadn't realized that their nefarious scheme is to increase the number of abortions by reducing the availability of contraceptives! How could I have been so easily fooled?
Jack, I'm afraid you'll need to revise your theory that Republican leaders surreptitiously want to preserve Roe so that they can maintain a coalition that will dissolve if Roe is overturned. In light of Dawn's argument, you will need to claim that Republican leaders pretend they want to overturn Roe, on behalf of a constituency that pretends that it wants to reduce the number of abortions. Politics can be so confusing!
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Columbia business professor Ray Fisman has a fascinating column in Slate on the economics of California's "three strikes" law -- a subject near to my heart because I wrote my undergraduate thesis on it. Researchers at RAND have done some work on the costs, benefits and efficacy of the law, but Fisman writes that a new study by the National Bureau of Economic Research contains some disturbing findings:
. . . [The study] finds that three-strikes laws like California's, while discouraging criminals from doing things like smoking pot or shoplifting, may push those who do continue in a life of crime to commit more violent offenses. The study's author, Radha Iyengar, argues that this is because under such laws, felons with a pair of strikes against them have little to lose (and often much to gain) by committing serious crimes rather than minor offenses.
Why would stiffer penalties increase violent crime? To understand this seeming paradox, you first need to understand the nature of California's three-strikes law. Not just any offense gets you a first strike. It must be a so-called "record-aggravating" offense, which includes violent crimes like assault and rape as well as serious nonviolent crimes such as burglary or drug sales to minors. But after strike one, strikes two and three can come from any felony, including minor offenses like possession of marijuana or even stealing golf clubs or videotapes. A third strike carries with it a mandatory sentence of at least 25 years in prison.
Now, put yourself in the shoes of a two-strike criminal. The prospect of 25 years behind bars for a third offense is likely to give even a hardened criminal pause before he or she crosses the street against the lights. So we'd expect two-strike felons to commit fewer crimes. But suppose you've already decided to break the law—maybe you need to make a quick buck. Are you going to lift a few golf clubs from the local pro shop? Or are you going to hold up a bank? The potential haul from a bank robbery is obviously much greater, and the penalty is the same: Bank robbery will get you decades in the slammer, but if it's your third offense, so will shoplifting.
Even if you don't quite have the chutzpah to pull off a bank job, you still might end up committing a more violent crime if you're in a 0-2 hole. Let's say you opt for the golf club caper, but as you're making your getaway, you're cornered by a store security guard. Do you surrender quietly or pull out a gun? If strike three is looming, it's all the same to you whether you end up on trial for shoplifting or armed assault, so why not try to shoot your way out of an arrest?
The Supreme Court upheld California's three strikes law a few years ago. And in the aggregate, the law has helped reduce crime by putting away a lot of criminals (albeit at staggering cost for the state of California). But I don't think that's the end of the discussion. It's one thing to ask whether a law is Constitutional; it's quite another to ask whether the law is effective, or a prudent public policy. I'm curious about what my Convictions colleagues think. Do sentencing laws like "three strikes" work? Or are there better, cheaper, more effective alternatives? And if the law's unintended consequence has been to make 2nd strike criminals more violent, what can we do about it?
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[Dawn Johnsen] With apologies for the more-than-24-hour response time - an eternity for a blog, I know - I want to resurrect Eric's statement: "Members of the Republican coalition are not so much concerned about Roe as about reducing the number of abortions." Implausible, I think, on its face. But for any for whom it may be true, let me explain to them the error of their ways, with an example from here in Indiana.
Anti-choice legislators introduced two bills in the Indiana legislature a couple of sessions ago: one an outright criminal ban on abortion and another a "TRAP" law. "TRAP" or "targeted regulation of abortion providers" laws are designed to sound non-threatening and trick people into thinking they are about legitimate health concerns. But they actually seek to shut down facilities that perform abortions: by singling them out for medically unnecessary, extremely expensive regulations, such as building specifications that mandate hallway widths and room sizes that mirror hospitals.
The Indiana TRAP law would have closed every abortion clinic in the state, and kept them closed unless and until they could afford expensive renovations or relocations (leaving hospitals the only lawful possibility). The criminal ban went nowhere, but the legislature came extremely close to enacting the TRAP law and shutting down every one of Indiana's seven abortion clinics for plainly no legitimate purpose. Including our Planned Parenthood clinic here in Bloomington.
A few stubborn facts: Last year Planned Parenthood of Indiana dispensed nearly half a million units of contraceptives, doing more than any other organization to reduce the abortion rate in Indiana. I repeat, the TRAP law would have debilitated for no legitimate purpose the organization doing more than any other to reduce unwanted pregnancies in Indiana. Most of its patients have limited other options, for they live at or below the poverty level. Nationally, 81 percent of Planned Parenthood's patients receive services to prevent unintended pregnancy. Many others receive screening for cancer, HIV and sexually transmitted diseases. And three percent of its services go to women to make real Roe's increasingly hollow promise, that whether to have an abortion is a decision for the woman and not for politicians to impose on her.
The way to reduce the number of abortions is no secret. It's by making available contraception and comprehensive sexuality education. And more than that, by enacting policies that support healthy pregnancies and healthy families. How about universal health care, or at least an expansion of the CHIP program for kids? Where is that Republican coalition?
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[Adam White]
Justice Clarence Thomas is the featured interview in the weekend edition of the Wall Street Journal. He's interviewed by David Rivkin and Lee Casey, a pair of prominent lawyers who do a fair share of writing on the side. (Our editor, Phil, is no stranger to Rivkin; they appeared together on NPR back in 2005, at the height of the laws-of-war debates.)
The article is intended for a general audience, and as such it offers little material unfamiliar to regular Court-watchers. (Except for the fact that he uses a Cornhuskers screen-saver not because he has any affiliation with the school but, rather, because "he's just a fan.") Nevertheless, I enjoyed his reflections on oral argument:
And why doesn't he ask questions at oral argument, a question oft-posed by critics insinuating that he is intellectually lazy or worse? Mr. Thomas chuckles wryly and observes that oral advocacy was much more important in the Court's early days. Today, cases are thoroughly briefed by the time they reach the Supreme Court, and there is just too little time to have a meaningful conversation with the lawyers. "This is my 17th term and I haven't found it necessary to ask a bunch of questions. I would be doing it to satisfy other people, not to do my job. Most of the answers are in the briefs. This isn't Perry Mason."
Those wondering how, precisely, to write a brief that will please Justice Thomas should consult LawProse.org, which boasts a fascinating series of video interviews with the respective Justices on the subject of brief-writing.
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