Ari Kohen's Blog
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Has enough time passed since the latest gun massacre so that we can now talk about common sense gun regulations, Second Amendment advocates and gun loving patriots? Or is it still not appropriate? You guys are generally the moral arbiters of when it’s acceptable to talk politics about gun violence, so please let us know, preferably before the next gun massacre, ok?
Is anyone taking bets this morning on what awful thing(s) Donald Trump will say or do today?
Keep in mind that in the past two weeks alone, he’s made a series of outright racist statements regarding the judge in his fraud case, he’s congratulated himself immediately after 50 people were murdered in a gay nightclub, he repeatedly implied that President Obama was a secret Muslim, he’s ramped up his hateful Islamophobic rhetoric (including repeated false claims about refugees and American citizens who are Muslim), and he revoked the press credentials of the Washington Post.
Most of this happened yesterday.
Over the past few weeks, I’ve learned that there is a decent-sized group of Sanders supporters who’d prefer a disastrous Trump presidency to a successful Clinton presidency. These are people with whom I agree on a great many policy positions, but they are completely convinced that Clinton spells the doom of progressive politics and that the system is so corrupt that only an utter catastrophe can shake things up and bring real, lasting change to American politics.
These people are now spending their time attempting to explain either that a Trump presidency might not actually be as bad as it seems for the country or that, even if it was absolutely terrible, at least it would cause the Democrats to totally reevaluate the way they do business and therefore they’d get a “truly” progressive candidate in 2020. It has been suggested to me that it’s most likely the case that no one would resign from the Supreme Court if Trump became president (no comment, though, on whether left-leaning justices would be sure not to die). It has even been suggested to me over the past week that maybe McCain/Palin would have been better than Obama/Biden since Obama turned out not to be as ideologically pure as he seemed to be when he was running for president.
From where I sit, this is all nonsense.
There are several reasons one might prefer another candidate to Hillary Clinton in the 2016 presidential election.
Not all of those reasons can be ultimately boiled down to sexism but some are pretty clearly connected to the fact that she is a woman.
Many Bernie Sanders supporters were not politically active in the run-up to the 2000 election contest between George W. Bush, Al Gore, and Ralph Nader. Some of them were young children and have no actual memory of what the Nader candidacy meant for Democrats.
The number of Hillary Clinton supporters who wouldn’t turn right around and vote for Bernie Sanders if he managed to garner the Democratic nomination is so small as to be impossible to measure.
The same cannot be said of Bernie Sanders supporters.
This is because a great many Sanders supporters think they cannot compromise on their beliefs–whatever those beliefs might be in this instance–irrespective of what the result might be.
I don’t claim to know what Donald Trump personally believes about African-Americans, Latinos, Muslims, Jews, women, gays, lesbians, and transgender individuals. As a result, I can’t say definitively whether or not Mr. Trump is a racist, homophobic, Islamophobic, anti-Semitic, xenophobe or whether he’s simply playing one on tv in order to garner the support of Americans who are.
What I can say definitively is that at a certain point it becomes a distinction without a meaningful difference.
One thing that has really struck me over the past few weeks is the way that prominent conservatives have lined up against the candidacy of Donald Trump.
It’s not that they’re doing it, though; it’s the reasoning behind it.
In virtually every case, the main reason given for the strongly-worded denunciation of Trump’s candidacy is that … he’s not actually a conservative.
Now, I’m not disputing that claim. But I think it’s fascinating that the go-to reason not to support Trump is because he’s not a true conservative. He’s a megalomaniacal racist without a shred of experience and seemingly no interest in learning about what the presidency would actually entail; he would be an unmitigated disaster for our country and, indeed, for the entire world; and the people who are excited about him are almost exclusively conspiracy theorists, white supremacists, and extremists of various other flavors who unite behind a banner of hatred, bigotry, anger, and a delusional sense of victimization.
But, sure, I guess he’s also not particularly interested in things traditional conservatives go for these days, like limited government, unwavering support for gun ownership, opposing marriage equality, and banning abortion.
In an event no one ever could have predicted, an arrogant, amoral, New York billionaire who inherited his fortune failed to appeal to large numbers of hard-working Evangelical Midwesterners.
It’s an absolute stunner.
It’s tough to pick just one because there are so many different ways in political theorists/philosophers are doing interesting things. It’s also a question of whether to judge someone by an entire career of being interesting and brilliant as opposed to a relatively young scholar who is likely to have an interesting and brilliant career.
So, I’ll make it relatively easy on myself and say Jürgen Habermas, whose work I first read in college, was important in working on my dissertation/first book, and I now teach in my own undergraduate classes.
Interestingly enough, a colleague and I actually wrote a paper about this years ago, which you’d probably already know if you tried to do a little bit of basic research on the topic.
There is seemingly no moment when people who are so desperately afraid of criminals that they need to carry guns with them everywhere they go think to themselves that they are actually the people we all ought to be most afraid of.
Today we learned that when an adult displays emotion about gun deaths, he is a bad leader and we should all buy lots of guns and ammo. Also, apparently, our precious Second Amendment is under the most pernicious sort of attack because it might become slightly more difficult to purchase all the guns and ammo you want from a local insurrectionist wingnut you met on Facebook or at the local army/navy surplus store.
Donald Trump will not be the Republican nominee for President of the United States in 2016.
The real problem is that a whole lot of Americans are perfectly willing to publicly express their support for the many different forms of bigotry that he has made the central feature of his noxious campaign.
Not so sure how we deal with that.
Whether online or in person, it is often far too easy to say things that are hurtful or that are interpreted as such by others; while we might disagree about things, we should always strive to engage others in dialogue with respect. Whenever I fail, it is important to be reminded of the human costs of that failure.
As Yom Kippur begins tonight, I wanted to take a moment to apologize to any and all who read this if I have offended or harmed you in any way over the past year.
I hope that the new year will be a sweet one for all of us.
In a recent post, I wrote about the fact that people in our society wouldn’t tolerate government agents torturing a convicted felon because we know that even convicted felons have a right not to be tortured. In other words, we all know there are certain punishments that are impermissible because they violate rights we believe cannot be violated by our government.
And yet we don’t put the right to life on this list. Many people in our society believe that the right to life is something a person can forfeit as a result of his actions, even as they hold to the position that the same person doesn’t forfeit his right not to be tortured.
Here’s an example from a reader:
I am a good example of someone who strongly believes in the limited use of the death penalty but also strongly supports our 8th Amendment. This is based on the notion that there are some things that we must not permit government to carry out. One of those things is the infliction of great pain. Torture is, when used instead of execution, far worse than a death carried out in a few seconds. For lesser crimes, I am against the use of beating, etc. for the same reason…a violation of human dignity by the government. Even if some criminals deserve torture, our govt. must not be given the terrible power to inflict it.
As a state official I could never torture Nikko Jenkins. I sure could “pull the switch.“
I’m not sure about you, but this position doesn’t make sense to me. I can’t wrap my head around the notion that some rights – like a right not to be tortured – are absolute while the right to life, without which all of the other rights don’t really amount to a whole lot, can be violated by agents of the government. How is it possible that beating Nikko Jenkins is “a violation of human dignity” but pumping Jenkins’ veins full of poison to stop his lungs and heart, thereby causing his immediate death, is not “a violation of human dignity”?
Interestingly, another reader suggests I’m probably in the minority on this one:
In a hypothetical world where humans could know with 100% certainty that someone, say, abducted, raped and slaughtered a series of children and they were mentally healthy and morally aware as they did it, and they’d be immediately executed upon conviction, then hell yea, go ahead kill them, beat them, whatever. Problem is we can never have such certainties and swiftness in the system because humanity is imperfect. If you really think someone we are 100% sure to have done it and been mentally healthy while doing it still has an impermeable right to life that’s fine but you’re in a very, very small minority, even amongst anti-death penalty people.
The first reader supports the death penalty and would himself execute a murderer like Nikko Jenkins; the second reader opposes the death penalty because “the system is imperfect and thus we ought not to execute people who may in fact have been innocent or crazy, and the process itself is so crazy that it causes a long drawn out financial and emotional mess with all the appeals.”
But neither one of these readers can explain why they believe the right to life is the sort of right the government can sometimes violate. The second reader – the one who actually opposes the death penalty – believes that a murderer literally has no rights; he believes not only that a murderer forfeits his right to life, but also that a murderer can be executed immediately upon conviction, can be beaten, “whatever.” This is at least a consistent position, though it’s a very disturbing one to me because it suggests the complete dehumanization of offenders.
After mostly taking a respite from blogging this summer, I’m likely going to get back into the swing of things before the semester begins in a few weeks.
So, to get the ball rolling, I’ll be taking questions and responding to them as time allows this weekend.
Human rights, political theory, pop culture: What would you like to discuss?
When I speak to people about the death penalty and human rights, someone invariably says that death row inmates have forfeited their right to life by committing crimes that are particularly heinous. The argument here is not so much that we have to put these criminals to death because we can’t keep ourselves safe from them; it’s that they no longer have the right to live and that, in order to express our outrage at what they’ve done, we are permitting the government to put them to death.
Let me begin by saying that I understand the outrage. If we’re not shocked and horrified by the unconscionable crimes that land people on death row, I’d say we’re missing some important component of human emotion. But I think we’re nonetheless wrong if we pivot from our outrage to the position that those whose actions so outrage us have forfeited their right to live. Our other rights, I would argue, aren’t particularly meaningful without the right to life.
We know, of course, that some rights can be forfeited or restricted. We know, for example, that you aren’t permitted to shout “Fire!” in a crowded theater even though you have the right to speak freely. And, more to the point of this blog post, I have no problem imprisoning people who commit murder even though this is a restriction on their liberty in a wide variety of ways.
But we also believe there are some rights that may not be abrogated no matter what someone has done. There are very few people openly advocating for raping criminals, for example, or for cutting off their hands or even beating them severely. Why not? Because we believe people have rights that disallow these methods of punishment. In other words, we think it would be morally impermissible for government agents to beat a criminal as punishment, but not to poison that same criminal to death. How can it possibly make sense to say that we may kill a person because he has forfeited his right to life but that we, nonetheless, may not otherwise harm the person?
The person who believes the death penalty is the proper punishment for some criminals based on the notion that these criminals have lost their right to life needs to explain why killing someone is acceptable but beating him isn’t.
On Friday, I wrote a post critical of my friend Bob Evnen’s argument regarding the cost of the death penalty. In that post, I noted that Evnen is right about one thing – we can make the death penalty cheaper and quicker – but wrong about another, more important thing: We can’t do that while also ensuring defendants’ due process rights and protecting the innocent.
I mentioned at the top of that post that Evnen makes a second major claim I would address. Here it is:
Criminal defendants who are facing the death penalty – which today must be pleaded by prosecutors up front – often want to make a deal by pleading guilty to first degree murder in exchange for a sentencing recommendation of life without parole. The existence of the death penalty as a possible sentence leads to guilty pleas that save the money spent on trials and limit the opportunity for appeals. Without the death penalty, criminal defendants and their lawyers will roll the dice and force prosecutors to try many more cases at very great expense to the taxpayer.
In short, Evnen’s argument is that a crucial reason the death penalty is more expensive than life imprisonment is that we’re not counting all the money we save when accused murderers plead guilty under threat of death. Without the death penalty as a tool for prosecutors to threaten the accused, he suggests, trial costs will skyrocket as defendants will happily roll the dice since the plea deal would offer life imprisonment and that would also be the worst possible outcome at trial.
All of this sounds fine … but Evnen misses two absolutely essential points. First, Evnen suggests that it’s permissible to overcharge defendants in order to get them to admit guilt; specifically, he believes it’s acceptable to threaten people with death in order to avoid the cost of a trial. While saving money is laudable, what Evnen proposes is a criminal justice system in which prosecutors don’t have to prove defendants’ guilt beyond a reasonable doubt to a jury of the defendants’ peers; instead, all they need to do is credibly threaten the accused with death in order to terrify the accused into making a deal. I think we ought to be nervous about a justice system that attempts to secure life imprisonment through terror, especially if the main justification for doing so is that we’ll save money by avoiding a whole bunch of jury trials.
This, of course, leads into the second point: We know that threatening people with execution secures confessions. But we also know that it sometimes yields false confessions. Evnen’s account of the great savings we’ll reap ignores this point entirely. And that’s surprising, given that it’s a well-know problem we’ve faced here recently in Nebraska. Here’s Jeff Patterson, responding to Evnen’s op-ed:
As an attorney for the Beatrice Six, I can tell you that our state saw a horrific miscarriage of justice in our lifetime because the death penalty was used as a bargaining chip. This misuse of the death penalty cost years of my clients’ lives and cost Nebraska taxpayers hundreds of thousands of dollars without securing justice for anyone.
There is no dispute that the threat of an execution is particularly coercive, and will persuade an accused to plead to a lesser charge or sentence. But this special kind of coercion comes with costs we cannot afford to incur. Social science researchers have conclusively documented that high-end inducements such as threats of execution are known risk factors for false confessions.
Particularly disconcerting is when the threat of execution actually induces an accused to falsely believe and develop false memories of a murder they didn’t commit. This is not something that could happen in the abstract. It is a phenomenon that has repeatedly occurred, including here in Nebraska with three of the Beatrice Six.
The threat of execution has often caused an innocent accused to agree to a so-called Alford plea – that is, plead no contest to a lesser charge while denying guilt but accepting the fact that there is sufficient evidence to result in a conviction. This is also a cost we cannot afford to incur. Once again, this is not a hypothetical point. Two of the Beatrice Six fall into this category.
That Evnen doesn’t mention the case of the Beatrice Six in an op-ed in which he argues in favor of doing precisely what was done to elicit their false confessions is telling. The only way one can argue in favor of overcharging and threatening defendants with the death penalty is if one ignores those times in which doing so has put innocent people in prison for years.
Not only do we run the very real risk of imprisoning people who are innocent, but we also aren’t actually saving ourselves a whole pile of money when we have to pay hundreds of thousands of dollars to each individual we falsely imprison.
If you want to save money, don’t look to the death penalty to do it for you. There are moral hazards that really ought to be seen as serious obstacles to that path.
On Sunday, my friend Bob Evnen – who is one of the few public champions of the death penalty in Nebraska – published an op-ed in the Lincon Journal Star in which he makes two major claims that are both connected to the cost of state killing. I’m going to deal with them in two separate posts because they’re worth dealing with separately. The first claim deals with the ways in which the death penalty could be made cheaper:
Much of the cost, indeed, much of the criticism of the death penalty, is attributed to “decades of appeals.” It is unsurprising that the loudest complaints about death penalty delays come from death penalty opponents who have created them. Rather than eliminate the death penalty to address the problem of delay, why don’t we limit appeals in ways that are consistent with the due process rights of defendants, as other states of have done. Virginia’s death penalty appeal period averages seven years. In Texas, it’s eleven years. It doesn’t have to be endless.
The short version is that Evnen believes Nebraska should limit the appeals of death row inmates in ways that have allowed Texas and Virginia to more speedily put inmates to death. He’s very careful to say that we ought to do so in ways that are consistent with due process rights of defendants – though he doesn’t specify how to do so; presumably, it would be to model our appeals limitations on those of other states who haven’t thus far run afoul of the U.S. Supreme Court.
In Nebraska, we have 10 inmates on death row, some of whom have languished there unkilled for as much as three decades; we haven’t carried out an execution since 1997. As Evnen notes, Texas and Virginia are much better at killing their convicts than we are.
But, as Evnen is concerned with due process rights of defendants, it’s unusual that he doesn’t consider the average length of time served by an innocent defendant on death row in this country. While Virginia averages a 7 year appeals process and Texas executes in roughly 11 years, it’s probably important to note that DNA exonerees average 13.6 years in prison. And these are the guys with DNA evidence to test. A great many death row inmates don’t have testable DNA evidence in their cases. I’m friends with Juan Melendez, a man who spent nearly 18 years on death row for a crime he didn’t commit. If Melendez had lived in the new Nebraska that Bob Evnen envisions, he’d definitely be dead.
Of course, Evnen lays the lengthy appeals process at the feet of death penalty opponents. His claim is that activists and attorneys have come up with myriad ways to delay executions, adding to their cost, and then have complained about the exorbitant cost of executions. We can’t have it both ways, Evnen seems to suggest.
But of course we can. The delays are there to ensure the due process rights of defendants, both the innocent and the guilty. Evnen doesn’t explain the reason for these delays but they include things like constitutional challenges about whether or not it’s acceptable for the state to torture someone to death. Is that a worthwhile appeal or one that’s just designed to waste time and money? What about an appeal regarding actual innocence? What about appeals designed to force the state to test DNA evidence, which for many years attorneys general argued against doing?
Evnen doesn’t mention, either, that the most likely outcome of a capital conviction is the overturning of that conviction on appeal. Here’s some information regarding a study on death penalty outcomes:
Those sentenced to death are almost three times as likely to see their death sentence overturned on appeal and to be resentenced to a lesser penalty than they are to be executed…. Why would reversal of the sentence be the single most common outcome of a death sentence? Capital trials have many unusual characteristics, but a key one is that there is an automatic (or “direct”) appeal through the state appellate courts and, if the death sentence is not overturned by the state appellate or supreme court, a review by a federal judge.
Throwing out a duly enrolled conviction is not something that state or federal appellate courts do because of a misplaced paperclip on a brief. State appellate courts and federal judges are not knee-jerk opponents of capital punishment; they participate in a system that imposes it regularly.
But both Republican and Democratic appointees have voted to overturn these convictions because they so often involve such issues as evidence withheld from the defense, improper instructions to the jury, or other serious flaws in the original trials.
Oh, and here’s some more information about Virginia, which Evnen thinks is a good model for Nebraska:
In fact, only one state, Virginia, has executed more than half of the inmates it has condemned. This rate of execution may stem in part from legal shortcomings, however: an American Bar Association report recently found many areas in which Virginia’s “highly efficient” death penalty suffers from deficiencies: in access to post-conviction DNA testing, jury instructions, prosecutors’ provision of evidence to the defense, and other areas.
The death penalty is expensive, on that Evnen and I agree. The idea that we can make it a lot cheaper by limiting appeals is one that ignores the realities of the death penalty system. The challenges by defense attorneys aren’t frivolous; they help to save innocent lives. Indeed, proponents of the death penalty point to exonerations to argue that the system works. But it only works – when it does, in fact, work – because of the delays (and the attendant cost) that Evnen wants to eliminate.
One thing I’ve always known is that I’m not a nuclear physicist. I turn to experts to learn the details when it comes to research and development of nuclear weaponry, as well as the various uses for centrifuges, the importance of the number of them in use, and the ability (measured in days) of a foreign government to sanitize a nuclear site of radioactive materials.
What I did not know until this week is the number of my Facebook friends who apparently are nuclear physicists.
The small handful of conservative legislators who lost four votes each on the gas tax, and licenses for DREAMers, and the death penalty are making some noise now about taking issues directly to the people of Nebraska.
Senator Beau McCoy, in particular, has done a lot of press around the idea that the people of Nebraska should be able to vote on whether or not the death penalty ought to remain on the books here in Nebraska. Unsurprisingly, I have some problems with this idea.
Let me be a bit more specific:
Of course, all the Nebraskans who apparently haven’t had their say and need to be polled on the death penalty actually had ample opportunity to call or write their legislators. It’s not like voting on this bill took place in secret or that it happened overnight. There was a public Judicial Committee hearing. Then there were three different votes of the full legislature. Then the governor vetoed the bill and there was another vote to override the veto.
Along with Governor Pete Ricketts and Senator Bill Kintner, McCoy regularly complains that every vote he loses – but perhaps especially this one – is the result of the vast majority of the legislature being out of touch with their constituents. I disagree.
I presume that McCoy and his colleagues knows a lot more about the pork industry in Nebraska. I presume they’ve studied it, specifically with regard to the question of foreign business interests. That’s why I voted for my senator. I didn’t send him to the legislature because I thought he’d agree with me on every issue or because I thought he’d simply do whatever I called and told him to do. I expected him to listen to me when I called, to think seriously about the issues confronting the legislature, and to make often difficult decisions. That’s what he did. Some constituents called to urge him to vote to retain the death penalty and others called to urge him to vote to repeal it. It’s not as simple as choosing one group of constituents over another; he listened to both groups, considered the arguments they made along with everything he’d learned and everything he believed about the death penalty, and he made his decision.
Those senators didn’t chose to ignore their constituents. They agreed with some and disagreed with others. That’s how this works. Welcome to representative democracy.
Only God has the right to take life. When the state allows itself to take life, it sets an example which the criminal distorts to his own ends. It proves to him that man may take into his own hands the disposition of another man’s life. The elimination of capital punishment would help to establish a climate in which life will be held sacred. The sense of the sanctity of life needs to be bolstered in our time, and it will be perhaps the greatest contribution toward deterring crime and violence…. The abolition of capital punishment will be an important step forward in the direction of a more humane justice. It will free America from a black spot of barbarism which still disfigures the good name of our country.
– Rabbi Ben Zion Bokser, 1960, in the Proceedings of the CLJS, 1927-1970, 3: 1537-8.
The death penalty is on its way out here in Nebraska, thanks in no small part to conservative legislators who have finally realized that it violates their core beliefs about the power of government, the important of fiscal responsibility, and the right to life.
It’s fascinating to watch as our new Republican governor clashes with some staunchly conservative legislators and, in particular, as he and some other conservative legislators try in vain to refute the logic of repeal with emotional appeals and factual inaccuracies.
As we head toward the third vote – I would say final, but a veto and then a veto override vote are anticipated unless Governor Ricketts comes to realize that it kinda looks bad to be overridden multiple times – it will be fascinating to watch the fireworks around this issue.
I’ve said it before and I’ll say it again: Nebraska’s repeal of the death penalty will be a bellwether for the United States and this wasteful, racist, classist, barbaric practice will be on its way out before too long.
“The progressives have attempted to take our state and make it like California, make it like New York, make it like all the progressive, leftist states: soft on illegal immigration, driver’s license for illegals,” he complained. “Gay rights. Of course Medicaid expansion was a few weeks ago. These are all the things they seek to do to our state to make us like the liberal states, the blue states like California.”
Kintner argued that instead of granting legal status to Dreamers, President Barack Obama should emulate a 1954 crackdown on illegal border crossings that was known as “Operation Wetback.”
State Sen. Patty Pansing Brooks (D) told the Omaha World-Herald that use of the word was particularly disturbing because a class of fourth graders was sitting in the Senate balcony. She later explained that she considered “wetback” to be in the same category as the N-word.
For his part, Kintner promised not to use the word again during floor debate “to keep the liberals happy.”
Well, I know one thing:
It’s really nice to that the esteemed State Senator will refrain from using racial slurs from now on … even though it’s just to keep silly, easily offended liberals like me from being unhappy, not because he actually sees a problem with tossing around racial slurs.
So generous.
Two interesting questions not addressed anywhere in the article because they might make people uncomfortable:
The answer to #1 is included in #2. The answer to #2 is “None.”