So, for better or worse, I'm back after a long absence. And what I want to talk about is "Law & Order". No, not the lousy TV show (don't hate, but it's terrible). But rather the favored topic of the GOP nominee, Donald Trump, and his main Senate surrogate, Jeff Sessions.
Now, let's be clear about one thing. "Law and Order" is a time-honored mantra of (usually conservative) politicians to scare nice white folks. Period. But the racial aspect of it is secondary to what I want to talk about. On August 3, 2016, President Obama commuted the sentences of 214 Federal inmates. Most of them were drug offenders, a small number had gun offenses. Like clockwork, Sen. Sessions sent up the "Law and Order" alarm. According to Sessions, the President's action was "reckless". Now, bear in mind that there are 193,299 Federal inmates. So 214 is .11% of the Federal population. Note the decimal point. Not 11%, but .11%. We're not exactly talking about throwing open the prison doors here. "Reckless" is an absurd description.
But Sen. Sessions was far from finished. He went on to state that those who were released were not "low-level, non-violent offenders, which simply do not exist in the Federal system". Do not exist. None. None at all. The guy who I represented who never met any of the top dealers in an oxy ring and in controlled buys over three years only had user-level quantities on two occasions must be a figment of my imagination, because Sen. Sessions says he "simply do{es} not exist in the Federal system". Ask any lawyer who has been involved in a drug conspiracy prosecution in Federal court about Sen. Sessions' statement. You'll have to wait for them to catch their breath after they're done laughing. The Federal prisons are FULL of low-level, non-violent offenders. Hell, it's what the Feds specialize in.
And the hits just kept on coming. Sen. Sessions stated that the commutations were poorly-timed because "violent crime is rising across the country since 2014". Understand that violent crime in this country has plummeted since 1991. Violent crime rates dropped 51% from 1991 to 2013. 2013 and 2014 are the lowest crime numbers this country has seen since before 1970. Did crime numbers creep up slightly in 2015? In some cities, yes. In others, no. But you are talking about very small increases from historic lows. In the first quarter of 2016, the murder rate in NYC is the lowest it's been since they have been tracking the numbers. So the hellscape that Sen. Sessions was clearly trying to imply is far, far from the truth. But what's the truth when there's fear to be stoked?
Not content with those misleading statistics, the good Senator from Alabama trotted out some more. He claimed that there is a 66.2% recidivism rate for Federal inmates. I searched for documentation of this claim and was unable to find any. What I did find was the March, 2016 report "Recidivism Among Federal Offenders: A Comprehensive Overview", published by the U.S. Sentencing Commission. That report gives you different numbers, depending on your definition of "recidivism". If you mean that the person is charged with another crime, that rate is 49.3%. But if you mean if that person is actually convicted of another crime, that rate is 31.7%. The actual conviction rate is the one you should be looking at, and even that is misleading, but the reasons for that are the subject of my next blog post, so you'll just have to tune back in. Suffice it to say that Sen. Sessions is greatly exaggerating the actual recidivism rate.
All of this completely ignores that most crime and punishment are dealt with in state courts, and that the President and the Congress actually can have little effect on any of that. But that has never stopped national politicians from demagoguing the issue. It is unfortunately enjoying a revival in this campaign year thanks to The Donald, ably assisted by Jefferson Beauregard Sessions, III.
If you are interested in more information about any of the quotes or statistics in this piece, the following articles and/or studies were used:
http://www.foxnews.com/politics/2016/08/03/obama-commutes-sentences-for-214-federal-prisoners.html
http://dailycaller.com/2016/08/05/sessions-on-obama-commuting-felons-sentences-president-playing-a-dangerous-game/
http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/recidivism_overview.pdf
https://www.bop.gov/about/statistics/population_statistics.jsp
http://www.brennancenter.org/blog/americas-faulty-perception-crime-rates
Tuesday, August 23, 2016
Tuesday, January 20, 2015
Movies, Military, and "Patriotism"
The movie "American Sniper" had a huge opening week at the box-office. That seems to have alternately made some people very happy and some people very unhappy. Not because of Clint Eastwood's directorial skill, or Bradley Cooper's acting skill (or the lack of either) but because of what they think the movie says about America and all the baggage that goes along with the notion of "patriotism". War movies, to some extent, have always carried this baggage, especially since Vietnam. As usual, I'm here to try and piss everyone off, whether you loved or hated the film.
May I suggest that the following list of propositions can all be held simultaneously, and consistently:
1. Clint Eastwood is an excellent director and Bradley Cooper is an excellent actor. As such, I am under the assumption that "American Sniper" is an excellent, well-made movie.
2. Movies very rarely are completely historically accurate. That is why they are "movies" and not "documentaries".
3. It is not necessary that one agree with a movie's point of view to recognize its artistic merit (i.e "Birth of a Nation", "Triumph of the Will", etc.)
4. The American military is, generally speaking, made up of very good people who perform their duties with professionalism and honor.
5. As with any profession, there are individuals in the American military who do not rise to that level of professionalism and honor, likely for a myriad of reasons.
6. Chris Kyle, the author of "American Sniper" was, by all accounts, an excellent marksman, exhibited personal bravery in the Iraq War, and likely saved the lives of numerous of his fellow soldiers.
7. Outside of his military life, Kyle was a habitual liar who concocted stories of supposed exploits that served to either help him sell books, propped up his self-made image of a bad-ass, or, more likely, some combination of same. Additionally, it appears that he and his widow actually donated very little of the proceeds of his book to charity, despite claims to the contrary. This is fair game, as he made himself a public figure.
8. The Iraq War was a war of choice for America, premised upon, at best, lazy or sloppy analysis of questionable intel.
9. As such, the Iraq War did not (does not) protect America's "freedoms" in any tangible way.
10. As such, there is little basis to claim that Kyle, or any military personnel involved in the Iraq War, was "protecting America's freedom".
11. Note, the preceding statement is not a personal criticism of Kyle or any military personnel involved in the Iraq War (at least any below the rank of General), nor does it detract from whatever bravery they exhibited in such conflict.
12. Criticism of "American Sniper", Chris Kyle, the Iraq War, the use of or tactics of the American military in any conflict, does not demonstrate a lack of patriotism, nor is it any commentary upon or degradation of, the particular service of any member of the American military, past, present, or future.
So, if you've read the book and enjoyed it, good for you. Just know a lot of it is fiction. If you saw the movie and enjoyed it, good for you. Just know a lot of it, too, is fiction. If you hate everything about the movie, good for you. Just know that most of the American military do their best under trying circumstances and don't get a vote in what war they fight, so don't paint with too broad a brush. Oh, and Chris Kyle, like most people, was neither all saint nor all sinner. Like most folks, he was a maddening mix of both.
May I suggest that the following list of propositions can all be held simultaneously, and consistently:
1. Clint Eastwood is an excellent director and Bradley Cooper is an excellent actor. As such, I am under the assumption that "American Sniper" is an excellent, well-made movie.
2. Movies very rarely are completely historically accurate. That is why they are "movies" and not "documentaries".
3. It is not necessary that one agree with a movie's point of view to recognize its artistic merit (i.e "Birth of a Nation", "Triumph of the Will", etc.)
4. The American military is, generally speaking, made up of very good people who perform their duties with professionalism and honor.
5. As with any profession, there are individuals in the American military who do not rise to that level of professionalism and honor, likely for a myriad of reasons.
6. Chris Kyle, the author of "American Sniper" was, by all accounts, an excellent marksman, exhibited personal bravery in the Iraq War, and likely saved the lives of numerous of his fellow soldiers.
7. Outside of his military life, Kyle was a habitual liar who concocted stories of supposed exploits that served to either help him sell books, propped up his self-made image of a bad-ass, or, more likely, some combination of same. Additionally, it appears that he and his widow actually donated very little of the proceeds of his book to charity, despite claims to the contrary. This is fair game, as he made himself a public figure.
8. The Iraq War was a war of choice for America, premised upon, at best, lazy or sloppy analysis of questionable intel.
9. As such, the Iraq War did not (does not) protect America's "freedoms" in any tangible way.
10. As such, there is little basis to claim that Kyle, or any military personnel involved in the Iraq War, was "protecting America's freedom".
11. Note, the preceding statement is not a personal criticism of Kyle or any military personnel involved in the Iraq War (at least any below the rank of General), nor does it detract from whatever bravery they exhibited in such conflict.
12. Criticism of "American Sniper", Chris Kyle, the Iraq War, the use of or tactics of the American military in any conflict, does not demonstrate a lack of patriotism, nor is it any commentary upon or degradation of, the particular service of any member of the American military, past, present, or future.
So, if you've read the book and enjoyed it, good for you. Just know a lot of it is fiction. If you saw the movie and enjoyed it, good for you. Just know a lot of it, too, is fiction. If you hate everything about the movie, good for you. Just know that most of the American military do their best under trying circumstances and don't get a vote in what war they fight, so don't paint with too broad a brush. Oh, and Chris Kyle, like most people, was neither all saint nor all sinner. Like most folks, he was a maddening mix of both.
Wednesday, November 19, 2014
Zen and Hardwood Floors
I have been regaling my friends on Facebook for the last few days with pictures and updates on a project my wife and I undertook to put a hardwood floor down in our den. As of about midnight last night, the construction was complete (a small piece of quarter round and a threshold cap have to be tacked down, but why quibble). As I was falling asleep last night, I kept coming back to something I had said to my wife earlier in the evening: "There's nothing like finish carpentry to keep you humble". I had said that after screwing up a miter cut on a piece of baseboard and having to re-do the entire piece. But I could have said it about construction as a whole. And the project reinforced and reminded me of some of the things that it is easy to forget in your day-to-day life. At least I forget them all the time.
Construction mandates precision. Or, should I say, good construction mandates precision. If you are off on your measurement, your cut, or any step along the way, your end product looks like hell. Or doesn't work at all. I remember one of my first ironworking jobs as a kid. We'd put up the girders and I-beams for a floor, and bolted them into place. Then, we strung heavy cables between the spans and used turnbuckles to crank the huge pieces of metal into plum. It ain't easy and takes a lot of muscle. I remember us being about a half -inch off on one and saying that that seemed close enough. The journeyman I was working with said (I'll excise the incredible profanity every sentence by an ironworker contains) "@#$(# kid, if every floor is half a #*@&$ing inch off, by the time we get to the top we'll be two @#*ing feet off).
So it was on this project. Every time my attention would wander, there would be a mistake. Sometimes that mistake would not reveal itself until it messed something up further along. Then you have to go back, find the mistake, and fix it. You have to stay in the moment and sweat the details. Cursing doesn't help, whining doesn't help, getting angry at your partner doesn't help. Trust me, I tried all of those. You have to pull it back, center, and focus on the task at hand and nothing else. Zen. There is a classic Zen aphorism, "before Enlightenment, chop wood and carry water; after Enlightenment, chop wood and carry water". In other words, the path (or the Way as some Zen philosophers term it) lies in paying attention to what is in front of you, and being fully in it. Doing it as well as you can, no matter its simplicity. If you are a fan of the old TV show M*A*S*H, in one episode someone asked the arrogant but brilliant surgeon, Dr. Charles Emerson Winchester, why he was such a great surgeon. His reply was "I do one thing at a time, I do it very, very well, and then I move on." In "The Book of Five Rings", a classic of martial arts literature, Miyamoto Musashi lays out nine precepts that the warrior should follow. One of those is: "Pay attention, even to the simple things."
Every job is like that, or can be. In my law practice, when I focus on the details, the big picture is always clearer. The police reports and witness statements have to be read again and again, because just because a cop says someone "confessed" does not make it so when you read it or listen to it. The pictures have to be looked at carefully and completely. I saw evidence of rigor in a picture once that I thought I had looked at three times before, and it changed the whole defense. And, at the most basic, you have to read the statute and see what it actually says, not what you "know" it says because you've been doing this so long. Focus, stay in the moment, pay attention to each step along the way. The end result will take care of itself. Good things to remember. And I got a pretty nice new den floor out of it, too.
Construction mandates precision. Or, should I say, good construction mandates precision. If you are off on your measurement, your cut, or any step along the way, your end product looks like hell. Or doesn't work at all. I remember one of my first ironworking jobs as a kid. We'd put up the girders and I-beams for a floor, and bolted them into place. Then, we strung heavy cables between the spans and used turnbuckles to crank the huge pieces of metal into plum. It ain't easy and takes a lot of muscle. I remember us being about a half -inch off on one and saying that that seemed close enough. The journeyman I was working with said (I'll excise the incredible profanity every sentence by an ironworker contains) "@#$(# kid, if every floor is half a #*@&$ing inch off, by the time we get to the top we'll be two @#*ing feet off).
So it was on this project. Every time my attention would wander, there would be a mistake. Sometimes that mistake would not reveal itself until it messed something up further along. Then you have to go back, find the mistake, and fix it. You have to stay in the moment and sweat the details. Cursing doesn't help, whining doesn't help, getting angry at your partner doesn't help. Trust me, I tried all of those. You have to pull it back, center, and focus on the task at hand and nothing else. Zen. There is a classic Zen aphorism, "before Enlightenment, chop wood and carry water; after Enlightenment, chop wood and carry water". In other words, the path (or the Way as some Zen philosophers term it) lies in paying attention to what is in front of you, and being fully in it. Doing it as well as you can, no matter its simplicity. If you are a fan of the old TV show M*A*S*H, in one episode someone asked the arrogant but brilliant surgeon, Dr. Charles Emerson Winchester, why he was such a great surgeon. His reply was "I do one thing at a time, I do it very, very well, and then I move on." In "The Book of Five Rings", a classic of martial arts literature, Miyamoto Musashi lays out nine precepts that the warrior should follow. One of those is: "Pay attention, even to the simple things."
Every job is like that, or can be. In my law practice, when I focus on the details, the big picture is always clearer. The police reports and witness statements have to be read again and again, because just because a cop says someone "confessed" does not make it so when you read it or listen to it. The pictures have to be looked at carefully and completely. I saw evidence of rigor in a picture once that I thought I had looked at three times before, and it changed the whole defense. And, at the most basic, you have to read the statute and see what it actually says, not what you "know" it says because you've been doing this so long. Focus, stay in the moment, pay attention to each step along the way. The end result will take care of itself. Good things to remember. And I got a pretty nice new den floor out of it, too.
Friday, October 31, 2014
Kaci Hickox--American
I have watched with fascination and, more and more frequently, outrage at the way Kaci Hickox, the nurse who had ventured to Sierra Leone to help treat Ebola patients and has now returned to the U.S., has been treated by the governments of New Jersey and Maine and by what appears to be a majority of the American public. At the risk of sounding like the stereotypical crotchety old guy (which I guess I am at this point of my life), what the hell has happened to America and Americans? When did we let fear shrivel us to this point? Kaci Hickox has demonstrated, and continues to demonstrate, the traits that I grew up believing embodied the best of America, and is being pilloried for it.
What makes an ideal American? What are the attributes that go into why the vast majority of our citizens, if you ask them, consider America "exceptional"? Consider just a few: courage, compassion for others, independence, a refusal to be bullied by the state (or anyone else). Kaci Hickox voluntarily went to one of the most dangerous places in the world right now, where health care workers like her are dying at alarming rates. I don't know what she got paid to do so, but I guarantee you it wasn't enough to convince me or most of you to do the same. She did so to help other people--to help them live. The word "hero" gets thrown around far too often these days. Well, Kaci Hickox and the people who are putting their lives on the line in order to try and stop Ebola from becoming a pandemic are heroes. So, courage? Check. Compassion for others? Check.
After doing all this, Kaci Hickox returns home. You know, to "the land of the free and the home of the brave". And didn't find much of either. She did the responsible thing, and told authorities that she was returning from West Africa and had been there helping treat Ebola patients. And the freakout commenced. Despite being completely asymptomatic, she was immediately treated as one of the unclean. Let's pause here for a second. If you are unwilling to accept the opinions of the experts that Ebola is not airborne and that a person with Ebola is only contagious when they are exhibiting symptoms, then just stop reading. It is better that you and I don't waste each other's time. The current American penchant for ignoring science is equally disturbing, but you cannot have a rational discussion of Ebola and ignore the doctors because you're scared. Professional bully Chris Christie then tried to make himself look like a man of action (don't get me started on Andrew Cuomo) and locked Hickox up. No, that is not an overstatement. That's what a quarantine is. Your 1st Amendment rights to assemble and travel, your 4th Amendment right to due process, arguably your 8th Amendment right to be free of excessive bail and cruel and unusual punishment are all summarily taken away. But, but, the public health,you say! I repeat, she is completely asymptomatic. There is not a shred of evidence that she has the disease, even in latent form. But Chris Christie being Chris Christie, bullied forward. And Kaci Hickox called him out. As Hickox's boyfriend said, "he messed with the wrong redhead". She contacted Norm Siegel, one of the better civil rights lawyers in the country and said she was going to sue. And, in the true way of all bullies, Christie caved while maintaining that he hadn't. Hickox then returned home to rural Maine, where she was met with more bullying by the equally blustering governor of that state, Paul LePage, who has threatened her with men with guns if she doesn't kowtow. But she hasn't, and I suspect she won't.
Now, I fully expect the Chris Christies and Paul LePages of the world to try and score cheap political points by being posturing blowhards at every opportunity. What I didn't expect was the public response. What I didn't expect was the vitriol being spewed at Hickox. What I didn't expect was the immediate willingness of what seems to be the majority of the American public to give in to unsubstantiated and groundless fear. But maybe I should have. In response to 9/11, we allowed the Patriot Act, and continue to allow its renewal. We allowed people to be locked up indefinitely, with no charges, no lawyer, and no hope of ever getting out. We tortured people. America seems to be afraid of everything and everyone anymore, and we don't care what we do as long as it makes that fear go away for a little bit. We let Chris Christies (and, yes, Andrew Cuomos, this is not intended to be a partisan rant) ignore the basic rights that, in fact, are what DOES make America exceptional. And we say and write hateful things about someone who should be a shining example of what America is supposed to be about.
What makes an ideal American? What are the attributes that go into why the vast majority of our citizens, if you ask them, consider America "exceptional"? Consider just a few: courage, compassion for others, independence, a refusal to be bullied by the state (or anyone else). Kaci Hickox voluntarily went to one of the most dangerous places in the world right now, where health care workers like her are dying at alarming rates. I don't know what she got paid to do so, but I guarantee you it wasn't enough to convince me or most of you to do the same. She did so to help other people--to help them live. The word "hero" gets thrown around far too often these days. Well, Kaci Hickox and the people who are putting their lives on the line in order to try and stop Ebola from becoming a pandemic are heroes. So, courage? Check. Compassion for others? Check.
After doing all this, Kaci Hickox returns home. You know, to "the land of the free and the home of the brave". And didn't find much of either. She did the responsible thing, and told authorities that she was returning from West Africa and had been there helping treat Ebola patients. And the freakout commenced. Despite being completely asymptomatic, she was immediately treated as one of the unclean. Let's pause here for a second. If you are unwilling to accept the opinions of the experts that Ebola is not airborne and that a person with Ebola is only contagious when they are exhibiting symptoms, then just stop reading. It is better that you and I don't waste each other's time. The current American penchant for ignoring science is equally disturbing, but you cannot have a rational discussion of Ebola and ignore the doctors because you're scared. Professional bully Chris Christie then tried to make himself look like a man of action (don't get me started on Andrew Cuomo) and locked Hickox up. No, that is not an overstatement. That's what a quarantine is. Your 1st Amendment rights to assemble and travel, your 4th Amendment right to due process, arguably your 8th Amendment right to be free of excessive bail and cruel and unusual punishment are all summarily taken away. But, but, the public health,you say! I repeat, she is completely asymptomatic. There is not a shred of evidence that she has the disease, even in latent form. But Chris Christie being Chris Christie, bullied forward. And Kaci Hickox called him out. As Hickox's boyfriend said, "he messed with the wrong redhead". She contacted Norm Siegel, one of the better civil rights lawyers in the country and said she was going to sue. And, in the true way of all bullies, Christie caved while maintaining that he hadn't. Hickox then returned home to rural Maine, where she was met with more bullying by the equally blustering governor of that state, Paul LePage, who has threatened her with men with guns if she doesn't kowtow. But she hasn't, and I suspect she won't.
Now, I fully expect the Chris Christies and Paul LePages of the world to try and score cheap political points by being posturing blowhards at every opportunity. What I didn't expect was the public response. What I didn't expect was the vitriol being spewed at Hickox. What I didn't expect was the immediate willingness of what seems to be the majority of the American public to give in to unsubstantiated and groundless fear. But maybe I should have. In response to 9/11, we allowed the Patriot Act, and continue to allow its renewal. We allowed people to be locked up indefinitely, with no charges, no lawyer, and no hope of ever getting out. We tortured people. America seems to be afraid of everything and everyone anymore, and we don't care what we do as long as it makes that fear go away for a little bit. We let Chris Christies (and, yes, Andrew Cuomos, this is not intended to be a partisan rant) ignore the basic rights that, in fact, are what DOES make America exceptional. And we say and write hateful things about someone who should be a shining example of what America is supposed to be about.
Thursday, October 16, 2014
Slippery Slopes--Redux
Talk about instant gratification. I write one simple blog post and immediately 28 Harvard Law professors publish an Op-Ed in The Boston Globe saying "What that Trobich guy said? Ditto!" Well, maybe that's not exactly what they said, and I am quite sure not a one of them read my blog, but that's my story and I'm sticking to it. Regrettably, almost simultaneously, Ezra Klein of Vox.com, a journalist whose work I generally think highly of, wrote a piece demonstrating that the concerns I (and the Harvard profs and others) am expressing are true.
The entire Op-Ed by the Harvard profs can be found here, but the bottom-line is that they are very concerned that these new policies overreach, and that the due process rights of the accused are getting trampled-upon in the process. Now, again, let's be precise here. The only entity that you have a "right" to due process from is the government. I have made the point in another post that most people mistakenly believe that Constitutional guarantees like free speech (and due process) means that you get that right anywhere and everywhere. You don't. Let's be clear, there is nothing "Unconstitutional" about these policies. But while an allegation of sexual assault to a university is not the same as being charged with that crime, the seriousness of the allegation (and the likely life-changing result of the allegation alone) warrants every bit the amount of due process that the Constitution guarantees you in a criminal court venue.
So far, so good, right? The various Harvard profs have awakened from their academic slumber and seen fit to take a stand. Yay. But almost at the same time, Klein was writing a piece that, I submit, should scare the crap out of you. Put simply, Klein acknowledges that the "Yes means Yes" law just enacted in California is "a terrible bill", but in his opinion "a necessary one". As I said in my earlier post, I am as staunch a defender of feminism as you will find. My two daughters are the pride and joy of my life, and if anyone ever hurt them in any way well, there's a reason why one of my daughters' friends said that when they saw "Taken" with Liam Neeson they thought of me (see below). When Klein speaks of "a culture of sexual entitlement" that is "built on [women's] fear", I agree with him completely. But this is not the remedy. Klein says, approvingly, that to work, "Yes means Yes" has to "create a world where men are afraid". And, most disturbingly, the cases where men are "convicted" from a truly ambiguous situation or, worse, completely concocted allegations, well, according to Klein, "that's necessary for the law's success". He's willing for some (in his assertion "very, very few") to be ruined for the greater good.
No. That can't be. If that's the solution, then we need to keep the disease. Surely there is a better way to tear down the very real issues of sexual entitlement/harassment/assault. There has to be.
[If you somehow don't know the movie "Taken" with Liam Neeson (heck, they're about to come out with "Taken 3") here is the near-iconic scene of Neeson assuring those who have kidnapped his daughter of their fate]
The entire Op-Ed by the Harvard profs can be found here, but the bottom-line is that they are very concerned that these new policies overreach, and that the due process rights of the accused are getting trampled-upon in the process. Now, again, let's be precise here. The only entity that you have a "right" to due process from is the government. I have made the point in another post that most people mistakenly believe that Constitutional guarantees like free speech (and due process) means that you get that right anywhere and everywhere. You don't. Let's be clear, there is nothing "Unconstitutional" about these policies. But while an allegation of sexual assault to a university is not the same as being charged with that crime, the seriousness of the allegation (and the likely life-changing result of the allegation alone) warrants every bit the amount of due process that the Constitution guarantees you in a criminal court venue.
So far, so good, right? The various Harvard profs have awakened from their academic slumber and seen fit to take a stand. Yay. But almost at the same time, Klein was writing a piece that, I submit, should scare the crap out of you. Put simply, Klein acknowledges that the "Yes means Yes" law just enacted in California is "a terrible bill", but in his opinion "a necessary one". As I said in my earlier post, I am as staunch a defender of feminism as you will find. My two daughters are the pride and joy of my life, and if anyone ever hurt them in any way well, there's a reason why one of my daughters' friends said that when they saw "Taken" with Liam Neeson they thought of me (see below). When Klein speaks of "a culture of sexual entitlement" that is "built on [women's] fear", I agree with him completely. But this is not the remedy. Klein says, approvingly, that to work, "Yes means Yes" has to "create a world where men are afraid". And, most disturbingly, the cases where men are "convicted" from a truly ambiguous situation or, worse, completely concocted allegations, well, according to Klein, "that's necessary for the law's success". He's willing for some (in his assertion "very, very few") to be ruined for the greater good.
No. That can't be. If that's the solution, then we need to keep the disease. Surely there is a better way to tear down the very real issues of sexual entitlement/harassment/assault. There has to be.
[If you somehow don't know the movie "Taken" with Liam Neeson (heck, they're about to come out with "Taken 3") here is the near-iconic scene of Neeson assuring those who have kidnapped his daughter of their fate]
Monday, October 13, 2014
The Slipperiest of Slopes
This is a hard one. Any one who knows me even a little knows I am an ardent backer of feminism. Few things provoke a more visceral hatred in me than men mistreating women. I abhor "guys being guys" and talking about women as if they are simply a sum of their physical attributes, making sexist and derogatory remarks when faced with women who are smart, strong, and accomplished. I tried to raise my daughters to be such smart, strong, and accomplished women (in part, by marrying one) and trying to teach them that they take a back seat to no one. They were never to worry about being too smart in school or too tough on the athletic field. They could wear what they wanted and say what they wanted, and any male who had a problem with any of that wasn't much of a man and was certainly not worth their time. And, most importantly, no male (I purposely do not use the word "man" here) had any right to put their hand on them if they did want him to, and that if he persisted, to use whatever force or tactic they saw fit to stop it. So, when discussions turn to sexual harassment and assault, my first inclination is to assume some guy is being an ass (or worse). BUT..........
I am also a criminal defense lawyer. The concept of "innocent until proven guilty" is so ingrained in me as to be almost organic. There are few things worse than the prospect of an innocent person being punished for something they did not do. And, yes, false allegations of harassment, assault, and rape do occur. I've been a part of several cases where they were. BUT.....
In response (at least partially) to demands from feminists and their allies to do more about sexual assault, especially in the military and on college campuses, the noxious "Men's Rights" movement has gathered steam. Most of those who write on such topics are clearly misogynists, or simply those hoping to gain some extra print columns by making provocative but inane arguments (i.e. James Taranto of the Wall St. Journal). Many of the arguments fall back on the pseudo "guys being guys" type of argument and assert that it's essential for males to act like boors in order to be good soldiers, or not feel emasculated somehow. I chalk those up under the heading of "bullshit arguments by losers". BUT.....
There is a movement, which the Obama administration has supported, to attempt to assist alleged victims of sexual assault on campuses to seek redress. And here's where the slope has started to get pretty slippery. First, this movement purports to address the assertion that 1 in 5 women will be sexually assaulted while in college. The problem is that the basis for that assertion is shaky. But even if the numbers are correct, the proposals are still pretty troubling. The most troubling for me is that it starts backwards--that is, it assumes that the allegations of assault are true, and shifts the burden of proof to the accused. Secondly, it is beginning to chip away at what constitutes "rape". When you are talking about prohibited conduct, definitions are important....real important. California recently passed an "affirmative consent" law, which means that in investigating sexual assault on campus, universities are supposed to determine if there was "an affirmative, conscious, and voluntary agreement to engage in sexual activity". How exactly does one prove or disprove such a standard? It is hard enough in "traditional" rape cases, where force and intimidation often don't leave any outward signs, yet the lack of such outward signs are brushed off as even beginning to constitute a defense. And, even if not a court of law, do you want someone to wear the stigma of being a "rapist" with such a vague standard?
As I said at the start, I hold few persons in more contempt than males who abuse women, in whatever form that abuse may take. But this new direction is fraught with peril. And I think it's a bad idea.
I am also a criminal defense lawyer. The concept of "innocent until proven guilty" is so ingrained in me as to be almost organic. There are few things worse than the prospect of an innocent person being punished for something they did not do. And, yes, false allegations of harassment, assault, and rape do occur. I've been a part of several cases where they were. BUT.....
In response (at least partially) to demands from feminists and their allies to do more about sexual assault, especially in the military and on college campuses, the noxious "Men's Rights" movement has gathered steam. Most of those who write on such topics are clearly misogynists, or simply those hoping to gain some extra print columns by making provocative but inane arguments (i.e. James Taranto of the Wall St. Journal). Many of the arguments fall back on the pseudo "guys being guys" type of argument and assert that it's essential for males to act like boors in order to be good soldiers, or not feel emasculated somehow. I chalk those up under the heading of "bullshit arguments by losers". BUT.....
There is a movement, which the Obama administration has supported, to attempt to assist alleged victims of sexual assault on campuses to seek redress. And here's where the slope has started to get pretty slippery. First, this movement purports to address the assertion that 1 in 5 women will be sexually assaulted while in college. The problem is that the basis for that assertion is shaky. But even if the numbers are correct, the proposals are still pretty troubling. The most troubling for me is that it starts backwards--that is, it assumes that the allegations of assault are true, and shifts the burden of proof to the accused. Secondly, it is beginning to chip away at what constitutes "rape". When you are talking about prohibited conduct, definitions are important....real important. California recently passed an "affirmative consent" law, which means that in investigating sexual assault on campus, universities are supposed to determine if there was "an affirmative, conscious, and voluntary agreement to engage in sexual activity". How exactly does one prove or disprove such a standard? It is hard enough in "traditional" rape cases, where force and intimidation often don't leave any outward signs, yet the lack of such outward signs are brushed off as even beginning to constitute a defense. And, even if not a court of law, do you want someone to wear the stigma of being a "rapist" with such a vague standard?
As I said at the start, I hold few persons in more contempt than males who abuse women, in whatever form that abuse may take. But this new direction is fraught with peril. And I think it's a bad idea.
Monday, September 29, 2014
It's Not About You
A lesson that I learned long ago, but which is easily forgotten, was brought back to me the other day. A young man I represent is charged with several very serious crimes. If convicted at trial, he faces the likelihood of spending most, if not all, of the rest of his life in prison. He just turned 19. The State has what appears to be substantial evidence. Last week, at the last moment, he balked at accepting a plea offer. It was not a remarkably generous plea offer, but it would have resulted in him getting out of prison while still being a few years younger than I am as I write this (and, contrary, to my son's opinion, I ain't old). The offer is now off the table. We go to trial next week.
My immediate reaction was a mixture of frustration and anger. Couldn't he see the choice he was making? Couldn't he see the logical, rational decision was to take the plea that I had fought long and hard to get? What am I going to do now? I'm going to get killed at trial. Several people came up to me afterward, all murmuring consoling phrases. After a bit, though, I stopped and thought about it. What the hell was I frustrated and angry about? This is not about me. It's about my client. He's made a choice. Whether I agree with it or not is no longer the point. He made it. And my job is to fight for him as hard as I possibly can. So there's no time to wallow about, criticizing my client's choices, bemoaning the task I have facing me. It's certainly not the time to go through the motions, put in a perfunctory performance, knowing the realities of what may likely happen. If you do that, everyone will pat you on the back and say, "hey, you had nothing to work with". Pardon the language: Bullshit. What it is time for is to focus on the fact that a young man has only me between him and perhaps a lifetime in prison. It's about him at this point, and it's my job to do everything I possibly can to help him.
So let's go. We're coming out, guns blazing. Every issue is going to be a fight, no matter what. No concessions, no quarter sought or given. Because I'm all he's got left.
My immediate reaction was a mixture of frustration and anger. Couldn't he see the choice he was making? Couldn't he see the logical, rational decision was to take the plea that I had fought long and hard to get? What am I going to do now? I'm going to get killed at trial. Several people came up to me afterward, all murmuring consoling phrases. After a bit, though, I stopped and thought about it. What the hell was I frustrated and angry about? This is not about me. It's about my client. He's made a choice. Whether I agree with it or not is no longer the point. He made it. And my job is to fight for him as hard as I possibly can. So there's no time to wallow about, criticizing my client's choices, bemoaning the task I have facing me. It's certainly not the time to go through the motions, put in a perfunctory performance, knowing the realities of what may likely happen. If you do that, everyone will pat you on the back and say, "hey, you had nothing to work with". Pardon the language: Bullshit. What it is time for is to focus on the fact that a young man has only me between him and perhaps a lifetime in prison. It's about him at this point, and it's my job to do everything I possibly can to help him.
So let's go. We're coming out, guns blazing. Every issue is going to be a fight, no matter what. No concessions, no quarter sought or given. Because I'm all he's got left.
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