Monday, June 29, 2015

BREAKING NEWS: SCOTUS Allows Oklahoma to Use Midazolam for Executions

The Supreme Court has just issued its decision in Glossip v. Gross, a petition on behalf of Oklahoma inmates along the familiar lines of tinkering with the machinery of death. After the Court found the three-drug protocol constitutional in Baze v. Rees, many executions stopped because the first drug in the trio became scarce (partly because European countries, disgusted with our retention of the death penalty, stopped exporting it.) As a solution to the problem of not being able to kill people, Oklahoma has introduced a substitute, the anesthetic Midazolam. This morning's decision sides 5:4 with the state, finding that the inmates have not proven that using Midazolam would violate the Eighth Amendment, nor shown an alternative method.

The "tinkering" line of death penalty cases stems from the post-Gregg convention that the death penalty is constitutional in principle, and therefore there must be a constitutional way to administer it. The problem is that, in the search for such a way, we have tried and abandoned several methods. As Austin Sarat shows us in Gruesome Spectacles, there really is no good way to kill people: approximately 3% of all executions are botched. The line between an execution that "went well" and one that didn't becomes remarkably blurry with the modern, pseudomedical ways to kill people. Still, there are enough documented lethal injection cases in which things did not go as planned to remind us that, no matter how clean and medical they appear, all of these methods will essentially fail to achieve the impossible distinction between death and suffering.

You can't divorce death from suffering: death is suffering. And it is clinging to the farce that the two are separable that makes court decisions on this matter farcical as well. Today's decision complains about "activists" that have made the drug scarce--as if it is their obligation to mitigate the harm. It also finds that the inmates have not offered a better solution to the state, as if they should wrap the executioner's ax with velvet: "here, this might be more comfortable for me."

What would happen if we let go of the assertion that there must be a way to kill people? If we let go of incessant litigation about the technologies of death? If we let go of the immensely costly post-conviction mechanism in which death row attorneys, completely out of options that invoke a true fundamental conversations about the heart of the matter, have to juggle chemicals and contraptions arguing that no, this one ain't good enough, either?

(I should say: I don't fault litigators one bit for engaging in this chatter. You do what you can with what you have to zealously defend your client. The abolitionist movement contains multitudes, and it is okay to fight for one's client's life by any means necessary while others continue to tackle the death penalty itself.)

The tenor of today's decision, which clings to the moral imperative to kill people in the face of medical and scientific evidence that doing so is truly not possible without flukes and without the suffering that goes with any inflicted death, further supports my conclusion from the last couple of years of this, namely, that the death penalty will not, itself, be executed. It will die a slow, costly death from a chronic disease--much like the inmates at San Quentin.

Friday, June 26, 2015

BREAKING NEWS: Has SCOTUS Lost Its Appetite for Sentencing Enhancements and Risk?

Amidst the good news that are not this blog's topic, about which you can read here and here, the Supreme Court also decided an important sentencing case, Johnson v. U.S.

The case involves the federal Armed Career Criminal Act, a habitual offender law that provides a sentencing enhancement upon committing the third violent offense. The residual clause of the law defines "violent offense" as any offense that “involves conduct that presents a serious potential risk of physical injury to another.”

In Johnson's case, the sentence was enhanced because his third offense was possession of a firearm (Johnson is a felon, and the firearm in question was a sawed-off shotgun. If you want more background, Johnson was being monitored for belonging to a white supremacist organization and being a source of concern re terrorism, and confessed to some pretty scary plans in that regard--so you can be sure thta this decision is not about his niceness).

The initial question put before the court was whether possession of a firearm fits the definition in the residual clause, but the Supreme Court asked the parties to brief on a broader issue: the definition of "violent offense" itself. Today, the Court sided 8-1 with Johnson, finding that the definition of "violent offense" was too vague and did not provide sufficient warning about conduct.

The vagueness, according to Justice Scalia who wrote for the majority (!!!), lies in the fact that the clause provides no guidelines for what counts as "risk" posed by the crime (statistics? similarity to enumerated offenses? precedents have taken various and different tacks) and for assessing the amount of "risk". Even seemingly easy issues turn out to be difficult to call. Notably, Scalia gives the example of "prison rioting", which he is willing to say is an offense that is defined so broadly that it doesn't necessarily generate "risk" of injury (!!!). Moreover, it is not necessary that a vague statute be "vague in all its applications".

The court also rejects the suggestion that "risk" be interpreted based on what each defendant actually did, rather than based on the average case. This is important in the facts of Johnson itself: It may well be that many felons in possession of a firearm don't pose as much risk as Johnson, a white supremacist with violent plans against progressives and minorities, but Johnson needs to be judged by the overall risk of the offense, not by his particular plans.

Finally, the court states that its decision is prompted by the massive confusion among lower federal courts on how to interpret the clause.

Justice Thomas arrives at the same conclusion via a different path--finding that possession of a firearm does not the definition in the residual clause. He agrees with the sole dissenter, Justice Alito, that the statute is not so vague as to merit its invalidation.

A few thoughts:

  1. It's hard to ignore the particular facts of this case given the tragic events of last week in South Carolina. Johnson's plans were similar to those that Roof put into action. Is the 8-1 decision here explainable, politically, via pro-gun sentiments among the conservative Justices?
  2. This decision might suggest that the Court has lost its appetite for sentencing enhancements. In Criminal Procedure II, I teach cases that have bent over backwards to uphold enhancements--including, in the case of California's Three Strikes, the ability to add two strikes at the same time (which obviously can't be justified by the need to deter--just by the wish to incapacitate.) Here we see that the Court pays a lot of homage to the idea of behavior modification, invoking the principle of legality. If I were teaching first year criminal law next year, I'd teach this case on the first day of class.
  3. The decision also highlights a disenchantment with the language of risk and panic, which has characterized so much of American criminal justice in the era of the "New Penology". 
  4. Many commentators on the new state of criminal justice, including me in Cheap on Crime, have pointed out that much of the new project of scaling back mass incarceration addresses nonviolent offenders, and retrenches opinions about violent offenders by lumping them all in the same category. I find it remarkable, and heartening, that this decision strikes at the heart of the issue, arguing against an overbroad category of violent offenses. I'm not sure Johnson should necessarily be on that side of the distinction, but as the Court states, this is about the offense, not about the offender.
  5. Finally, I find it notable that Justice Scalia--who, in Brown v. Plata referred to inmates as "speciments"--chose, as one of his examples, prison rioting, explicitly stating that the definition of rioting is so broad that it is not necessarily a violent offense. Attorneys in Ashker v. Brown, the lawsuit against long-term solitary confinement, should take note of this comment. I think it's important. It's the third Supreme Court statement this week that is sympathetic to prisoners.

Wednesday, June 24, 2015

Must Motel Owners Keep Detailed Registries and Give Them to the Police?

The Fourth Amendment protects "people, not places", but in applying it the courts seem to care quite a bit about places, too. As Jason Miller's explains in his useful note in the Seton Hall Circuit Review, while the Fourth Amendment principles behind hotel room searches are the same as behind any search (reasonable expectation of privacy awards standing for overnight guests), but hotels pose special fact-sensitive challenges, including registration under an alias, registration for a third party, paying with a fradulent credit card, exceeding checkout time, and the classic from Minnesota v. Carter--booking a room solely for the purpose of bagging cocaine.

But this week's decision in Los Angeles v. Patel required the Supreme Court to examine hotel searches via a different prism. This was not a motion to dismiss evidence or a §1983 lawsuit, but rather a facial challenge brought by motel owners against a Los Angeles city ordinance that requires them to maintain a careful registration of hotel guests' names, makes of cars, photo ID for cash payers, and sometimes credit card information. The information needs to be kept for 90 days and--which is the provision at issue in Patel--made "available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” Failure to comply, a misdemeanor, is punishable by up to six months in jail and a$1,000 fine.

The reasoning for the ordinance are fairly obvious: in his dissent, Justice Scalia explains that "The purpose of this recordkeeping requirement is to deter criminal conduct, on the theory that criminals will be unwilling to carry on illicit activities in motel rooms if they must provide identifying information at check-in. Because this deterrent effect will only be accomplished if motels actually do require guests to provide the required information, the ordinance also authorizes police to conduct random spot checks of motels’ guest registers to ensure that they are properly maintained." But it is also understandable that Los Angeles motel owners are well aware of other reasons why their clientele might not wish to be exposed in the registry, and see the ordinance as an interference with their business model (apparently, there's a whole line of hotels called "Mr. and Mrs. Smith"!).

Can they successfully challenge the Fourth Amendment, even though in any individual guest's case the police might be able to search a room with a warrant or a recognized exception? By a 5:4 majority, the Supreme Court answers this question in the affirmative.

Justice Sotomayor, who wrote the Opinion of the Court, found that the Fourth Amendment is as useful for a facial attack as any other constitutional provision. In doing so, she distinguished Sibron v. New York (1968), in which a facial attack failed, by arguing that the statute in Sibron was new and difficult to interpret (and therefore unlikely to be struck down.) Sotomayor provided several examples of prior facial attacks based on the Fourth Amendment, such as student athlete and employee drug testing schemes, and the successful challenges to drug testing schemes for candidates for office, warrantless arrests in the home, and luggage searches for people arriving in Puerto Rico from the United States.

In response to the government's contention that the ordinance in Patel differs from those examples in that hotel searches under it will not be universally unconstitutional, Sotomayor points out that the applications examined in light of the constitutional challenges are only those that involve authorization or prohibition of conduct; by contrast, the searches that will still be constitutional (via a warrant or an exception) do not directly involve the ordinance itself. By contrast, in this case, the municipal code creates a sanction for noncompliance with the police search of the records themselves, which is what is at issue here, and not for noncompliance with the request to search a room (backed by a warrant or an exception).

The requirement to keep a registry and provide it to officers upon request, under threat of arrest, is problematic because it does not allow for an opportunity to obtain precompliance review by a neutral decisionmaker: "A hotel owner who refuses to give an officer access to his or her registry", writes Justice Sotomayor, "can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice". For the ordinance to be constitutional, it is not necessary to have overview of each and every request for hotel records; it is, however, necessary to have the opportunity for overview "in those rare instances where a hotel operator objects to turning over the registry. " This overview could come in the form of an administrative subpoena which, by contrast to a full search, does not require probable cause. And if there is concern that someone might tamper with the records, the police can guard the registry until the issue is resolved.

In his dissent, Justice Scalia argues that the motel owners' petition is not a "case" or a "controversy", and that whenever facial attacks have succeeded, they were not aimed at the law but at its application. And on the merits, hotels (like cars, other businesses, and administrative agencies) can constitute exceptions to the normal search and seizure laws because they are closely regulated businesses. Scalia proceeds to examine the arrangement under the ordinance and argues that it provides a reasonable balance between governmental interests and privacy interests.

In a separate dissent, Justice Alito argues that not all applications of the ordinance are against Fourth Amendment law, which does not award protections in many situations equivalent to those in the ordinance.

A few thoughts:

1. The examples provided by Justices Scalia and Alito in the dissenting opinions present motels as hotbeds of dangerous criminal activity, complete with child porn, murder, sexual assault, and kidnapping. Justice Sotomayor obviously avoids these examples. I like to draw my students' attention to the fact that factual patterns, and examples, often explain judicial opinions, in that they drive the judicial imagination to the scenarios in which the law is likely to act.

2. I wonder if the dissent were less vociferous if the challenge to the ordinance came from five-star hotels, and not from motels.

3. The majority opinion suggests that there's an "easy fix" for the ordinance: an administrative subpoena that can be challenged. How long could it possibly take for the City of Los Angeles to produce the requisite form and make the ordinance constitution-compliant?

Props to Mark Edwards for drawing my interest to this case. 

Monday, June 22, 2015

How Should People in Pretrial Detention Be Treated? And--a Primer on the "Reasonable Man"

Most issues reviewed on this blog that pertain to prison conditions are legally assessed under the Eighth Amendment's prohibition against cruel and unusual punishment. Therefore, one of the ways in which the state tries to avoid accountability for the way it treats people is to argue that their situation does not count as "punishment"; and, indeed, the Supreme Court has routinely decided that many situations don't count as "punishment", and therefore do not merit an intervention, no matter how cruel and unusual the state's behavior might be.

Pretrial detention has been explicitly left out of the category of "punishment", per Bell v. Wolfish (1979). But today's decision in Kingsley v. Hendrickson is a step forward in protecting pretrial detainees from use of force and violence while behind bars.

Michael Kingsley was arrested on a drug charge and held in a Michigan jail while awaiting his trial. Following the escalation of a dispute over Kingsley's refusal to remove a piece of paper from the light fixture, officers forcibly removed him from his cell and put him in another cell, forcing him to lie face down on a bunk bed with his hands cuffed behind his back. There's some dispute over what happened next; Kingsley said the officers slammed his head against the bed, which they denied. But everyone agrees that the officers subsequently tased Kingsley in the back for five minutes and then left him alone in the cell.

Kingsley filed a §1983 suit against the jail officials. Since he couldn't argue cruel and unusual punishment, he argued that the officers' behavior violated his due process rights. The legal debate that ensued revolved around the question: what legal standard should be used when adjudicating claims about use of force? Kingsley maintained that the appropriate standard was objective: that is, that all he needed to prove was that the use of force would have seemed excessive to a reasonable officer at the time. The officers, by contrast, argued that the appropriate test was subjective, i.e., that Kingsley would have to prove intentional conduct on their behalf (very much akin to the standard employed in Eighth Amendment analysis in similar cases involving inmates). Since officers are likely to perceive their actions as appropriate (or at least claim they were appropriate later in court), you can see why the former standard is more favorable to the plaintiff.

The court found, 5:4, for Kingsley. The division of votes is pretty much what you would expect; Justice Breyer wrote the majority opinion, finding that an objective standard is appropriate here.

Whenever I talk to my students about the reasonable man, I draw someone like this on the blackboard:

Whenever courts hold someone to an objective standard of behavior--and this can happen in the context of a trial for criminal negligence or in a disposition of a search and seizure incident--it essentially compares the behavior of the person in question to an imaginary person. The "reasonable man" is not a statistical aggregate of all the people in the world; even if one's attorney summons all the people in the world and they testify that they would behave just as the defendant has done, it's not enough. The court is the sole arbiter of what a "reasonable person" would have done, and sometimes it deliberately sets the standard just a bit higher than the behavior of an average person, or of the defendant himself. The reason for that is that negligence, reasonability, and other objective standards rarely address issues that were within the defendant's awareness and intent, and the court seeks to educate people who might be in the defendant's shoes at a later time on how to behave.

If this seems harsh, take into account that the court's "reasonable man" is not entirely divorced from the circumstances in which the actual actor found himself. As Justice Breyer reminds us in Kingsley, "[a] court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." In our case, in which the officers had to decide how to treat Kingsley for his paper-on-the-light-fixture violation, the court's assessment of the officers' reasonability may include the following factors: "the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting."

Justice Breyer explains why the objective standard is suitable in this case. He starts off by reminding us that, precisely since pretrial detention is not "punishment", whether or not the officers intended to "punish" the detainee does not matter for the disposition of the case. Moreover, it is a workable standard, which might even be included in training materials for jail personnel anyway. And finally, even though the standard is objective, since the examination takes into account the officer's perception at the time, it protects officers who acted in good faith.

Justice Scalia's dissent ties Kingsley to Wolfish, arguing that the objective standard is not enough to equate the behavior to punishment. Ironically, juxtaposing the majority and the dissent leads to some unclarity on which situation benefits the defendant more: framing pretrial detention as "punishment" or as something else. And Justice Alito's dissent brings up even one more possibility, which is as of now undecided--the question whether a detainee in Kingsley's situation could raise a Fourth Amendment claim.

Detainee rights advocates may find some encouragement in the fact that the majority opinion subverts the usual problem with non-punishment confinement situation, which is the inability to apply Eighth Amendment protections to them, by supporting a test that is actually more favorable to the defendant. But what is even more remarkable is that the decision leaves the door open to Fourteenth Amendment claims of excessive force not only on behalf of detainees, but on behalf of convicted prisoners:

We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.

What with this, and with Kennedy's concurrence in Davis v. Ayala last week, this was a good week for promising dicta sayings that are sensitive to prisoners' rights and to correctional excesses.

But lest we become overly overjoyed, let's keep in mind that Kingsley's ordeal dates back to 2010. The conversation about bail and pretrial detention often expounds on how much better off you might be if you are not detained before trial: it's easier to prepare your defense, communicate with your loved ones and with your attorney, and keep your job, not to mention avoiding doing time that might later become "time served" by default. Kingsley is a reminder that pretrial detention also exposes one to violence and force, which hindsight support from courts--even from the Supreme Court--cannot undo.

Props to Mark Edwards for drawing my attention to this interesting case.

Friday, June 19, 2015

Are Mass Murderers and Serial Murderers Inherently Mentally Ill?

Goodbye, Friends.

As we were all still reeling from the horrific mass murder in Charleston, still too shocked to properly mourn the nine innocent victims--priests, coaches, students, parents, sons, daughters, siblings, spouses, coworkers, and friends, who got together to worship and were viciously attacked for no other reason than the color of their skin--the nomenclature debate began: what shall we call their killer? A terrorist? A mentally-ill person? A mass murderer?

Inevitable racial comparisons are made: Islam-motivated crimes tend to earn the label "terror" faster than white supremacy-motivated crimes (was the horrific murder of the Charlie Hebdo caricaturists "terror" or "mass murder"?). Personally, the word "terrorism" carries for me international law connotations, so I don't tend to us it in the context of domestic crimes; others may disagree. And while I would prefer devoting more energy to remembering the victims and supporting their families, I understand why it is inevitable, in the aftermath of a horrific crime, for all of us to try and make sense of what happened. One way in which people try to do that is debate the mental health of the perpetrator.

One obvious reason mental health becomes an important question is the question of legal accountability: it is really hard for us to experience the consequences of a heinous crime without wanting to see the perpetrator punished, and we worry that, if he is found insane, he will not bear this responsibility. South Carolina has a two-tiered standard for mental illness. Defendants bear no culpability at all ("not guilty") if they satisfy what is known as the M'Naghten Rules. Under these rules, which are law in many U.S. states, defendants claiming insanity have to prove, by preponderance of the evidence, that they suffered a mental disease or defect (usually this requires proof of psychosis, as opposed to neurosis, even though law lags some behind psychiatry in terms of the distinction), and as a result were unable to:

(1) distinguish right from wrong (e.g., a person with mental illness who believes that he or she are God's emissary, and that killing the victim is a moral right); or--
(2) understand their act in the framework of right and wrong (e.g., a person with mental illness who thinks his victim is a hologram or an inanimate object, and it is therefore not wrong to shoot her.)

The second tier in South Carolina law allows for a verdict of "guilty but mentally ill", which turns upon the "irresistible impulse" standard. Upon a finding that the defendant committed the crime beyond a reasonable doubt, the defendant has the burden to prove, by preponderance of the evidence, that because of her mental illness she could not refrain from committing the crime (e.g., a person with mental illness who hears voices commanding him to kill, which he can't resist, even though he knows it's wrong.) It should be noted that many countries, including common-law countries, accept "irresistible impulse" as an absolute defense (after all, it's about the denial of free choice, which is the underpinning of modern criminal responsibility!), but the United States has not followed that path.

Even though the standard for the insanity defense is legal, not purely medical, psychiatrists are in some ways the gatekeepers. After all, many people who commit horrific acts of mass murder might believe that their acts are justified (as the defendant in this case is, outrageously, arguing, evoking the tired cliché of the hypersexualized black male to justify his actions), without suffering from a recognized mental illness. But it is also important to keep in mind that what constitutes a mental illness is malleable, and changes periodically. The DSM has seen several editions over many decades; the elements of diseases change; some are categorized differently, and some (thankfully) cease to be defined as mental illnesses at all. Sometimes, the classification of a behavior as a mental illness is welcomed not because it delineates pathology, but because it allows people to receive health care in a country with no universal provision for health care.

But it's important not to leave unexamined the impulse of some commentators to see mental illness before any official diagnosis is on the horizon--that is, the idea that just the fact that a heinous crime has been committed in itself suggests that the perpetrator is mentally ill. South Carolina law explicitly rejects this notion, stating that "[e]vidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the defense of insanity." Nonetheless, in our appetite to make sense of a horrible tragedy, we try to go there. In my current study of the Manson "family" parole hearings, I'm coming across many people for whom the question whether Manson himself is mentally ill, or whether his followers suffered from some form of collective psychosis, is still relevant and hotly debated; I can see how and why people would use the mental health framework to try and understand a shocking crime, which is now seen by many as having put an end to the romantic notions of the sixties.  Assuming that someone who is capable of committing heinous murders has to be mentally ill might be a protective mechanism, distinguishing"us", the healthy, from "them", the sick, and reassuring us that "we" could never do such a thing. As sociologist Emile Durkheim argued in the late 19th century, defining another's deviance fosters social solidarity. And as Michel Foucault argued in Madness and Civilization, one of the main features of modernity is the need to cleanse and categorize and separate the sane from the insane.

It is also, of course, telling that the labels are applied in a racialized manner; even though the murders in Charleston easily lend themselves to being understood as a murder in the context of racial supremacy (if you will, a mental illness that has characterized this country for centuries), there are commenters who intuitively gravitate to individual mental illness as an explanation, preferring the medical context to the political one. Ely Aaronson's new and terrific book From Slave Abuse to Hate Crime speaks extensively of the mechanisms that led to the framing of anti-black violence as hate crime. Aaronson problematizes the usual arc-of-progress linear narrative, that "things are better than they used to be", by showing how, with every iteration of an effort (usually by white moral entrepreneurs sympathetic to black plight) to criminalize white-on-black crime as hate crime, there are new barriers for the effective enforcement of the new label.

We know a few things about the suspect in the Charleston murder already: he is a confirmed and proud racist, with a long history of activism in white supremacy groups (he is also in his early twenties, which is the typical age for early onset schizophrenia, but it also happens to be the typical age at which people tend to commit violent crime in general, so that's neither here nor there). If he is not insane, in the legal sense of the world, why does his deed still seem so "crazy"? is it just the heinousness of the act? In his new book Listening to Killers, psychiatrist James Garbarino says that, while most killers do not meet the official parameters for an insanity defense, they nonetheless kill for reasons that are "crazy" to us:

Most of the killers I listen to commit their crimes in states of mind that mimic the conditions that define legal insanity: they believe that in their world what they are doing is necessary and therefore right. They are so emotionally damaged that in their minds they have lost sight of the relevance of “right and wrong.” They are responding to powerful emotional forces—often unconscious forces—over which they have little if any control, at least in the moment of their violent action. It is in this sense that they make “crazy” choices.

The more than fifty murder cases in which I have been involved over the past twenty years have included many different explanations for the violent choices made. When looked at from the outside observer’s point of view, many seem crazy. However, each makes sense when looked at from the inside of their minds (and hearts in some cases).

Garbarini lists, in his typology of "crazy" reasons to kill, the following: survival (preemptive violence when feeling threatened); lust for power; monstrous narcissism; existential honor (real concerns that without honor one will cease to exist as a person); retaliation for sexual abandonment; panic; criminal practicality (crime as part of a criminal business enterprise); and even curiosity, or thrill. Really, it's hard (but not impossible) to think of a "not crazy" reason to kill (self defense, duress, and necessity are all efforts to define such reasons; there's a reason why they are so few and so narrowly defined).

That we are horrified, shocked, angry, sad, upset at a horrific crime, that we cannot understand how someone could do such a thing, does not mean that the perpetrator is necessarily legally or medically insane. Mental illness is not a blanket explanation for everything that the "sane" world does not understand. Also, plenty of people who are severely mentally ill do not commit crime. Moreover: whether or not a particular perpetrator suffers from mental illness does not negate the observation that this country suffers from a collective sociopolitical illness of white supremacy. The two categories are not mutually exclusive, and people often do good and bad things for a variety of reasons. As Maslow said, "while behavior is almost always motivated, it is also almost always biologically, culturally and situationally determined as well."

Deep condolences to the families of Cynthia Hurd, Susie Jackson, Ethel Lance, Rev. DePayne Middleton-Doctor, Hon. Rev. Clementa Pinckney, Tywanza Sanders,  Rev. Daniel Simmons Sr., Rev. Sharonda Singleton, and Myra Thompson. If only our efforts to make sense of the murder of your loved ones could bring them back.

Thursday, June 18, 2015

What Happens If the Court Disallowed Your Attorney from Attending a Batson Hearing?

The Sixth Amendment requires that defendants be tried by a jury of their peers; this raises serious questions when partisan interests bring racial considerations into the choice. Batson v. Kentucky, decided by the Supreme Court in 1986, limited the ability to use peremptory challenges (which allow each party to disqualify jurors without providing an explanation) when the pattern of challenges indicates racial (or, as later decided, gender) bias. The procedure under Batson requires three steps: the other party (typically the defense) points to a systematic pattern of racial exclusion; the excluding party (typically the prosecution) provides race-neutral explanations for the exclusion; and the court decides, based on totality of the circumstances, whether the challenges can stand.

Shortly after Batson, in 1989, Hector Ayala was convicted of a triple murder in the context of a robbery in San Diego. At the voir dire stage of his capital punishment trial, his attorney objected three times to repeated use of peremptory challenges by the prosecution against black and latino prospective jurors. Each time, the prosecution asked that the defense leave the room, arguing that they didn't want to expose trial tactics to the defense. Their actual race-neutral explanations for the peremptory challenges were concerns about criminal record, concerns about unwillingness to apply the death penalty, and personal history in following and being involved in controversial trials. The judge agreed to let the peremptory challenges stand. Ayala was convicted and sentenced to death.

Today, the Supreme Court decided Davis v. Ayala, siding 5:4 against Ayala.

The Court was willing to accept, as a basic premise, that Ayala's constitutional rights were violated; but that is not enough to merit a reversal. Under the law governing post-conviction remedies, Ayala had to also overcome the "harmless error" doctrine.

Here's how harmless error works: On appeal or on habeas, when someone successfully establishes that their constitutional rights were violated, the court also cares about whether, had everything gone well, the result of the proceeding would have been different. The first distinction the court makes is between "structural errors" and "trial errors". The former lead to immediate relief; with the latter, we're concerned about how the error might've affected the outcome. It's easier to prove that it did on appeal (where you only have to create reasonable doubt that it might have) than on habeas (where the burden of proof is higher.) Here's a basic illustration (click on the graphic to enlarge):

If this was not complicated enough, let's throw in an extra issue: in federal courts, where collateral review (habeas) happens, the procedure is also governed by AEDPA, which says, among other things, that the federal courts will not intervene in state court decisions unless they were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." This standard is said to incorporate the heightened test for collateral reviews set in the diagram above.

The Court then examined whether the county court in the original trial was right in deciding that the challenges to the jurors were neutral. Here, it goes into the questioning of the jurors, finding that, even if there were white jurors who answered similarly to the voir dire questions, there were still differences in terms of how willing they were to apply the death penalty. Or, more accurately, these similarities are not enough to meet the burden of proof that the challenges were racial and resulted in a different verdict than if they hadn't been allowed.

It is important to flag an important issue here: Under Witherspoon v. Illinois, it is perfectly okay to dismiss for cause jurors that are absolutely, 100% opposed to the death penalty, though it is not okay to dismiss for cause jurors that are merely reluctant to impose it. But, tactics-wise, if you have a juror that seems reluctant, albeit not reluctant enough to allow for a Witherspoon strike, you can certainly use your peremptory challenge on him. It's not good enough for a for-cause challenge, but it is a race-neutral, and thus legitimate, excuse for a peremptory challenge.

But what about the defense attorney's absence when the prosecutor articulated these race-neutral reasons for exclusion? The Court argues that, during the interrogation of the witnesses, the defense had ample opportunity to impact the record in a way that would indicate that the peremptory challenges were based on race. Before the prosecutor offered the explanation, the defense had an exchange with the court in which they sought to prove that the prospective jurors' reactions did not differ from those of their fellow prospective jurors.

So, Ayala loses. But what is interesting here is that Justice Kennedy files a concurrent opinion, in which he talks about the "side issue" of Ayala having been in solitary confinement ("administrative segreagation") on death row for more than twenty-five years. He says:

[I]f his solitary confinement follows the usual pattern, it is likely respondent has been held for all or
most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. . .  It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison.

. . . 

[D]espite scholarly discussion and some commentary from other sources, the condition in which prisoners are  kept simply has not been a matter of sufficient public inquiry or interest. To be sure, cases on prison procedures and conditions do reach the courts. . . Sentencing judges, moreover, devote considerable time and thought to their task. There is no accepted mechanism, however, for them to take into account, when sentencing a defendant, whether the time in prison will or should be served in solitary. So in many cases, it is as if a judge had no choice but to say: “In imposing
this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.” Even if the law were to condone or permit this added punishment, so stark an outcome ought not to be the result of society’s simple unawareness or

Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.

After citing numerous scholarly articles about the horrors of solitary confinement, Kennedy continues:

Of course, prison officials must have discretion to decide that in some instances temporary,
solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exa cts a terrible price . . . [including "anxiety, panic, withdrawal, hallucinations,self-mutilation, and suicidal thoughts and behaviors"]. In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons.” . . . There is truth to this in our own time.

This commentary, combined with his compassionate majority opinion in Brown v. Plata, in which he cited horrific neglect in California prisons and included photos, marks Kennedy as the guardian of dignity whenever prisons are concerned. In his recent book Mass Incarceration on Trial, Jonathan Simon predicts a "dignity cascade" that would hopefully lead to change in prison conditions. If that is true, Kennedy will be the herald of this cascade, and this segment indicates his intention to welcome such cases and provide real succor to those who need it most.

How to Determine Intellectual Disability for Death Penalty Purposes?

This morning, the Supreme Court decided Brumfield v. Cain, a Louisiana case that raised the question how to determine intellectual disability for death penalty purposes.

The facts are as follows: In 1993, Brumfield murdered off-duty police officer Betty Smothers. The crime, as recounted in Justice Thomas' dissent, was a random, heartless shooting into a car in the process of a "hustle", and can only be explained by Brumfield's antisocial personality--he showed no remorse for it. Moreover, it was the culmination of a horrific two-week-long crime spree.

At the time of Brumfield's trial, there were no constitutional limitations on executing mentally disabled inmates. At the sentencing phase of Brumfield's trial, the Baton Rouge court heard mitigating evidence on Brumfield's behalf: his mom, a social worker who compiled his personal history; and a neuropsychologist who examined him. The court psychologist examined him as well, but did not testify. The evidence, at the time, demonstrated that Brumfield had registered an IQ score of 75, had a fourth-grade reading level, had been prescribed numerous medications and treated at psychiatric hospitals as a child, had been identified as having some form of learning disability, and had been placed in special education classes.

In 2002, years after Brumfield had been sentenced to death, the Supreme Court decided Atkins v. Virginia, in which it ruled that the execution of the intellectually disabled was unconstitutional--a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. In State v. Williams, the Louisiana Supreme Court interpreted Atkins as requiring, for a new hearing to establish a diagnosis of "mental retardation", that the petitioner would have to raise a reasonable doubt that the following conditions might be met:

(1) subaverage intelligence, as measured by objective standardized IQ tests; 
(2) significant impairment in several areas of adaptive skills, which are: (i) Self-care. (ii) Understanding and use of language. (iii) Learning. (iv) Mobility. (v) Self-direction.
(vi) Capacity for independent living); and 
(3) manifestations of this neuro-psychological disorder in the developmental stage.

After Williams was decided, Brumfield, who was in the process of appealing his conviction and sentence, amended his petition to include a request to hold a hearing to establish that his mental capacity fell beneath the minimum required for execution. He also requested funds to help him procure evidence he could present at the hearing. The state court refused his request, and, relying on the original record at the time of his sentencing, stated that there was no evidence, rising to the level of a "reasonable doubt" that Brumfield was intellectually disabled, that justified such a hearing.

The Supreme Court, in a 5:4 decision authored by Justice Sotomayor, sided with Brumfield. The Court argued that an IQ of 75 could, within the margin of error expected of such tests, be consistent with a mental disability. Moreover, contrary to the decision that denied Brumfield's petition, the evidence he presented at the original sentencing hearing suggested significant impairments in several areas of adaptive skills, including language and learning. Not that Brumfield had to positively prove any of these things; all he had to do was show reasonable doubt that they might be true. And given the indications in the original record, he would probably have had a much better chance to prove his disability in a full hearing.

Justice Thomas' dissent, as mentioned above, went in depth into the particulars of the crime and the plight of the victim's family, particularly her two eldest sons (she was a mother of six.) And while the victims understandably are enraged at the victim and his postconviction efforts--are we served, as a whole, by the clinging to dogmatic criteria in identifying who is fit to kill and who is not? Suppose Brumfield's IQ had been 80, not 75--would that really make us more comfortable killing him? Suppose Brumfield's IQ had been 70, not 75--would that have made the victim's family's loss easier to bear?

I'm sure that, for some victims, the prospect of the death penalty provides some closure. But I can think of nothing more demeaning and tiresome for many victims than the need to suffer through decades-long legal quibbles about the minutiae of their loved one's murderer's mental capabilities. The number of executions, even in Louisiana, is in decline. In the last twenty years, they consist of seven executions, the last one in 2010 and the one before that in 2002. Is it really worthwhile to continue tinkering with the machinery of death this way, rather than send convicted murderers, particularly those who might recidivate, to long prison sentences?

Tuesday, June 16, 2015

Eliminating Grand Jury in Police Violence Cases in CA? Good Intentions, Bad Idea

Senator Holly Mitchel, a well-intentioned and well-respected member of the California Senate, has proposed SB 227, which consists of the following:

Existing law requires a grand jury to inquire into willful or corrupt misconduct in office by a public officer in the county. Existing law also authorizes a member of a grand jury, if he or she knows or has reason to believe that a public offense has been committed, to declare it to his or her fellow jurors, who are then authorized by existing law to investigate it.

This bill would prohibit a grand jury from inquiring into an offense or misconduct that involves a shooting or use of excessive force by a peace officer, as specified, that led to the death of a person being detained or arrested by the peace officer. officer, unless the offense was declared to the grand jury by one of its members, as described above.

This idea is, of course, prompted by the recent failures to indict in the cases involving the deaths of Michael Brown and Eric Garner. It's populistic, and I'm sure will have its fans, but it's a bad idea for the following reasons:

1. It's unnecessary. In CA, we haven't had cases of failures to indict at the grand jury level specifically. This is simply not a problem in this state. If it ain't broken, don't fix it with hastily-made laws.

2. It's cosmetic. Since the prosecutors control the grand jury anyway, eliminating it merely means that the prosecutors will decline to prosecute, rather than prosecuting and passing the buck, presumably, to the grand jury, which they also control.

3. It categorically treats one category of defendants differently than the rest in terms of their constitutional rights. One can think of other ways to handle sensitive inquiries into police violence--moving them from the county to the state, from the state to federal authorities--without taking away their constitutional rights. While there is no federal right to a grand jury, there is one in California. Grand juries are ineffectual, usually, as they simply do what the district attorney wants them to do, but they are, at least in theory, supposed to provide another inquisitorial mechanism and a control. If we want to eliminate them, let's eliminate them across the board, not only for one category of offenders.

4. It is important to know all the facts. I've read numerous shrill, angry online voices arguing that it is racist to withhold judgment when one does not know all the facts. I find this alarming and massively disturbing. Police officers are people, too; they, too, deserve to benefit from doubt when they are criminal defendants; and no amount of screaming about what we are sure happened in a police-citizen encounter can overcome the simple fact that we were not physically there. An inquiry is designed to find out what the facts were. It is either effective, in which case we want to keep it, or ineffective, in which case we want to get rid of it, but it is outrageous to discard the facts when they don't work for us politically.

Sunday, June 7, 2015

Aquarius, Episode 12 - Spoiler Alerts

These are Hodiak, Shafe, and Walt (Hodiak's son) sharing a beer in friendship, and toating to America, even though their fragmented and flawed understandings of what America has become pull them apart.

Hodiak, the WW2 cynic veteran, is just trying to do his job. Shafe, an early Vietnam veteran, is "not there yet" with respect to the anti-war movement. An Walt, about to be court-martialed for revealing what he knew, is embracing the movement and feels disenchanted with his country.

Disenchantment abounds in Episode 12. The murderers of the gay victims and the judge's wife are caught and killed--one by the cops and one by his brother's hand--and the cover-up of the deaths is truly masterful--the Thin Blue Line strikes again.

Oh, and apparently Mary gives birth to a dead son, and somehow Sadie procures a live one for her to replace him, partly to curry favors with Charlie - another incident that has no bearing on the real chronicles of the Manson family. I liked the aesthetics of juxtaposing the christening with Hodiak's award of the Medal of Valor, but I'm not sure what was implied. Nor did I particularly appreciate the Ken Karn backstory which, again, tries to make something that in reality was plenty horrible without embellishment into something else.

This concludes our series on Aquarius, and we return to our regular blogging program.

Aquarius, Episode 11: Spoiler Alerts

Plot-thick and sixties-thin, this episode sees Hodiak fighting for the life of his whistle-blower son by bargaining with Ken Karn. We also are exposed to more information on Manson's deeds and to more animosity between the girls.

Shafe's remorse about his homophobic reaction to Chris, the murder victim, becomes front and center as he fights to reopen the case with the help of the disgruntled bar owner. And Emma finds herself further alienated from her mother and in prison, with nowhere else to go but back to the Family.

Aquarius, Episode 10: Spoiler Alerts

Episode 10 is a buffet of pop psychology: everyone--Hodiak, Manson, Emma--is confronted with their parents.

In Manson's case, the mother that had abandoned him as a child returns to propose a business deal, and their problematic relationship is exposed, ending in Manson essentially selling her to the Straight Satans. Like many incidents in the show, this one has no equivalent in what we know about Manson and the Family in the Los Angeles years, and is, in all likelihood, a plot manipulation to demonize Manson and show his capability for callousness and gratuitous violence. I find myself seriously questioning the premise of portraying a real, living man, who (at least theoretically--and probably only theoretically) could be released on parole, in this manner, and I doubt they could do this had it not been for the symbolic association of the main character with evil. While we know of several heinous murders committed by Manson and the family, reality was cruel enough in itself, and the fictional embellishments, if anything, diminish credibility and make it difficult to follow the show. I wonder if, twenty years from now, Aquarius, which is a fictional drama, will be the authoritative go-to story on Manson and the Family; I also wonder how many of the Family members will still be doing time and coming up for parole.

This episode also sees an effort to darken Susan Atkins' character (in her case, whatever libel argument she might've had would be posthumous, and maybe that explains the choice) and to problematize the relationships between the girls.

Hodiak's father, in his turn, accuses Hodiak of having returned from WW2 "with no soul". He helps Walt, who is still interested in exposing government actions near the Cambodia border; but the newspapers, who were so eager in Chapter 9 to expose Joe Moran's ethnicity, are suddenly reluctant to publish.

Finally, in this episode we see Shafe's undercover gig begin to bear fruit, and we also see him discover what his homophobia, and the police department's reluctance to investigate the actor's murder, had wrought; the chatty man who hit on Shafe during the investigation was found murdered, likely by the man with the previous victim's ring on his fingers. This, and an incidence in which Bunchy's brother Arthur was murdered, is a reminder that overenforcement and underenforcement went, then and now, hand in hand.

Aquarius, Episode 9: Spoiler Alerts

Like Episode 8, Episode 9 deals with issues of race and racism within the police force, this time through the story of Joe Moran, who, unbeknownst to his wife, kids, and fellow officers, is Cuban. Having benefitted from the ambiguity in his last name, Moran persuasively convinced his wife that he was Irish, and advanced through the ranks, until... a Latino journalist, Sandoval, found out the truth and decided to "out" Moran as Cuban.

Moran's fear that his wife will leave him leads him to attempt suicide, and Hodiak, who comes into the room, tries to help. He reveals to Moran that his father was Jewish, a fact that he also does not share widely in the department. It's understandable why: in both episodes, the idea of affirmative action or of representation of women or "spics" is considered ridiculous. There's not, I should mention, a black officer in sight.

Moran and, to a lesser degree, Hodiak, are examples of the quiet tragedies of "passing" and living a lie, which are echoed by the series' exposure of sexual and marital hypocrisies. Moran reminds me a bit of Silk, the hero of Philip Roth's novel The Human Stain, which is based on the life of Roth's friend, Melvin Tumin.

Moreover, Moran reminded me of Osagie Obasogie's recent book Blinded by Sight, in which he problematizes the idea that race is something that is "seen" by interviewing people who have been blind since birth about their experiences of race. The interviewees told Obasogie something fascinating: like seeing people, blind people experience race visually. Race is, therefore, not something that just "is" (Obasogie calls this faulty assumption "'race' ipsa loquitur") but something that is created, manufactured, as presumably visual.

In one of the book's vignettes, Obasogie tells an incredible, and horrible, tale of a trial for marriage fraud. The story is so astounding that I quote it in its entirety:

Leonard Rhinelander was the socialite son of a wealthy New York family. In the fall of 1921, he met Alice Jones through her sister Grace and the couple quickly became quite fond of each other. On at least two occasions during their first few months together, the couple--Alice was then twenty-two, four years Leonard's senior--secluded themselves for days in New York City hotels where they were intimate. Over the next few years, Leonard took several extended trips at his father's request that separated the couple, but they remained in touch through frequent letters proclaiming their love for one another. Leonard returned to New York in May of 1924, and the couple secretly married that October, as Leonard's family was not fond of the former Ms. Jones. The couple lived in secret with Alice's family for about a month, until a story appeared in the Standard Star, a local paper in New Rochelle, titled: “Rhinelanders' Son Marries the Daughter of a Colored Man.” Thus, a wealthy White man from 1920s New York high society was exposed as having committed one of the biggest social faux pas one could imagine at the time: marrying a Black woman.

Alice was the biracial daughter of an English mother and a father described as “a bent, dark complexioned man who is bald, except for a fringe of curly white hair.” A few days after the story broke, Leonard was shown a copy of Alice's birth certificate that documented her race as Black. Two weeks later, Leonard filed suit for an annulment. The reason? Fraud: Leonard alleged that Alice misrepresented that she was not colored to trick him into marrying her. The stage was now set for what some might characterize as, up until then, the race trial of the century: a legal determination of whether Alice committed fraud by “passing” as White or if Leonard knew Alice's race before their marriage. Put differently, the question became what did Leonard know and, more importantly, what should he have known?

The strategy developed by Isaac Mills, Leonard's attorney, portrayed him as mentally challenged and Alice's physical features as racially ambiguous. The defense from Alice's counsel, Lee Parsons Davis, was quite simple: there was no fraud as Alice's blackness was visually obvious. Davis mockingly said to the jury:

I think the issue that Judge Mills should have presented to you was not mental unsoundness but blindness. Blindness . . . [Y] ou are here to determine whether Alice Rhinelander before her marriage told this man Rhinelander that she was white and had no colored blood. You are here to determine next whether or not that fooled him. Whether or not he could not see with his own eyes that he was marrying into a colored family.

After raising serious doubts about Leonard's cognitive disability, much of Davis' defense rested on showing that Alice's race could be known by simply looking at her body. This became a central theme in Davis' argument; he repeatedly asked Alice and her sisters to stand up and show the jury their hands and arms. But to hammer home this point, Davis wanted the jury to see all of Alice's body--not just hands and arms that might darken over time with routine exposure to sunlight. Given the couple's pre-marital relations, Davis argued that Leonard had seen all of Alice before being married, and that it was crucial for the jury to see the same intimate details of Alice's body that Leonard did before marrying her. Against objections from Leonard's attorneys, the judge allowed it. And what transpired was one of the biggest race spectacles of the twentieth century. From the Court record:

The Court, Mr. Mills, Mr. Davis, Mr. Swinburne, the jury, the plaintiff, the defendant, her mother, Mrs. George Jones, and the stenographer left the courtroom and entered the jury room. The defendant and Mrs. Jones then withdrew to the lavatory adjoining the jury room and, after a short time, again entered the jury room. The defendant, who was weeping, had on her underwear and a long coat. At Mr. Davis' direction she let down her coat, so that the upper portion of her body, as far down as the breast, was exposed. She then, again at Mr.Davis' direction, covered the upper part of her body and showed to the jury her bare legs, up as far as her knees. The Court, counsel, the jury and the plaintiff then re-entered the court room.

This dramatic revealing of Alice's body to the jury composed of all White married men was stunning, especially for 1920s sensibilities. Once back in the courtroom, Davis asked Leonard, “Your wife's body is the same shade as it was when you saw her in the Marie Antoinette [hotel] with all of her clothing removed?”Leonard responded affirmatively, to which Davis said “That is all.” Shortly after this display of Alice's body to the jury and Leonard's acknowledgement, the jury returned with a verdict in favor of Alice, finding that there was no fraud. To put a finer point on this: an all White male jury in 1925 ruled against a wealthy White male socialite and in favor of a working class Black woman because her race was found to be so visually obvious that there could have been no deception. The jury found that Alice's body, and race in general, visually spoke for itself. Alice did not have to take the stand at any point during the trial. Her body, and the jury's ability to observe it, was all of the evidence that was needed.

Joe Moran's story is a televised representation of the lives of many people, such as Alice Jones, whose racial identity had to be constructed as "seen". And it is a sobering reminder that, as late as the late 1960s, there were still people who were embarrassed and terrified to openly acknowledge their racial identities.

Aquarius, Episode 8: Spoiler Alerts

My commentary on Episodes 8 and 9 will focus, if you don't mind, away from Manson and his antics, and on what I found more interesting: diversity within the police force as a prism for overall racial attitudes and discrimination.

Both episodes focus on "others" within the largely male and white police hierarchy. Episode 8 focuses on the "othering" of Charmain Tully, whom we all know already from previous episodes as a hardworking, talented cop. Charmain gets permission from the captain to go on patrol with the boys, which turns into a parade of sexual harassment and unmerited jokes at her expense at a diner. But as the viewers become more and more indignant on her behalf, a gunman approaches the table and shoots her two colleagues.

Charmain is, understandably, in shock, but Hodiak immediately orders her to compose herself, attempting a primitive version of hypnosis to extract the details. Charmain is certain that the shooter was white. Nonetheless, the captain declares open season on a black neighborhood. Hodiak is only able to dissuade him from that by cutting a deal with Bunchy, his Black Panther acquaintance, who helps him find the true culprit via his car model.

Here's what happens next: Hodiak and Shafe quickly fall in line with the other officers, out to catch and "fry" the cop shooter. They find someone who matches the description, and there is circumstantial evidence, but no physical evidence. In a display of oppressive peer pressure, Hodiak makes it clear to Charmain that she must change the description she provided to match the culprit, and by doing so, to prove that she is "one of us". To my disappointment, but unsurprisingly, she conforms to the pressure and the suspect is apprehended.

Some things, clearly, have changed, and some have stayed the same. At around the period portrayed in the episode, Jerome Skolnick first published his book Justice Without Trial, documenting what he referred to as the "blue wall of silence."Much has been written about this since then, by Skolnick and others. Some are more optimistic than others, with some commenting on the deplorable approach toward whistleblowers and on the spillover effect of police perjury and 'testilying'. As David Sklansky explains in Not Your Father's Police Department, the increased diversification of the police force since the setting of Aquarius has not dented police culture. Female officers, GLBT officers, and officers of color, simply become "blue inside" and socialized to police norms. Which explains Charmain's behavior in this episode.

I have some doubts about the plausibility of the scenario, though. Hodiak's hypnosis of Charmain has her flash back to the crime, noticing mostly the hand holding the gun. We now know that such eyewitness evidence is very unreliable, due to the effect of weapon focus: it is a human tendency to focus on a weapon, which reduces the reliability of identification from scenarios that involve guns. While the police's focus on their preferred suspect is a textbook example of attitudinal bias, I'm not at all convinced that Charmain described the right guy.

Saturday, June 6, 2015

Aquarius, Episode 7: Spoiler Alerts

Ken Karn is becoming an important muckety-muck in Nixon's reelection campaign, and as such, he has to put his house in order--including emancipating his wayward daughter, Emma, who is gradually feeling disenchanted with the violence and fear that come with being a member of the Manson family. This episode sees Manson in the process of procuring a music deal, as well as abusing several of his young female disciples.

But again, what's more interesting is not the Manson angle at all. In the process of trying to locate a prostitute that Manson may have murdered, Hodiak reconnects with an old acquaintance of his--a former sex worker and currently a nurse. "You took part-time nursing school", he says with astonishment. His new friend's achievements and respectable profession, however, doesn't mean she's treated with dignity; when Karn's wife comes knocking on the door, she quickly slips back into her uniform, saying, "I'll give her a minute to leave and then head out through the service door."

If the show is trying to say something about social approaches to prostitution--and I don't think it is--the message I take away from this is that the amount of sexual hypocrisy and respectability games has not been reduced.

Friday, June 5, 2015

Aquarius, Episode 6: Spoiler Alerts

Mary Bronner, pregnant in San Francisco, seems to have wizened to Manson's manipulations; she is pregnant with his child, but is hesitant to join the family in Southern California. Manson had beaten her, and she seems to resent the fact that "Charlie's girls just get prettier". Nonetheless, the family is in need of her money, partly to purchase guns, and so the girls come to San Francisco to retrieve her.

But, as usual, the interesting part of the series is not about the Manson family, but about the police department. Hodiak is investigating the murder of Hollywood actor Raymond Novo, staged as a crucifixion; a valuable ring is missing from the victim's possessions. Soon, Novo's homosexuality and his secret dalliances with men at the film studios come to light, and Hodiak needs to investigate at a gay bar.

The Stonewall riots have not happened yet, but other important riots for gay rights have already occurred in San Francisco and in Los Angeles. The radical Gay Liberation movement and its legal struggles are yet to be born, but the community is no stranger to activism. Fresh in the mind of bar owners and patrons are the massive police raids of gay bars in the 1950s, so well captured in Katie Gilmartin's Lambda-winning noir novel Blackmail, My Love. So much so, in fact, that the bar owner recognizes undercover Hodiak as a cop who got all patrons arrested fifteen years earlier.

Hodiak tries to enlist Shafe to help with covert investigations, but apparently Shafe's openmindedness about feminism and interracial marriage stops at homosexuality, and he expresses views common at the time, referring to the men at the bar as "deviant" and "sick" and recoiling with disgust from one of the bar patrons. Hodiak surprises with an anachronism: "What do you care what they do with each other?" In other news, the Captain is back, but much as Charmain Tully hopes for an opportunity to do real police work, she is summarily pushed back into her file-cabinet folder, dismissed and humiliated.

In the end, the investigation is shut down under pressure from the film studios, and the bar is closed; more frighteningly, the patron who befriended Shafe goes home with a man wearing Novo's ring. A reminder to the viewers that in the gay community at the time, just as in the black community from Episode 4, overenforcement and underenforcement go hand in hand in marginalizing and destroying disenfranchised groups.

Aquarius, Episode 5: Spoiler Alerts

As Brian Shafe establishes rapport with Manson and his crew and battles racism at home, Sam Hodiak and Charmain Tully are investigating a domestic violence incident by a football pro against his girlfriend.

While I don't doubt that domestic violence was at least as common in the sixties as it is now, the choice to set the incident in the football world is surely a nod to contemporary events. Charmain interviews the girlfriend, who reports violence from an anonymous man. Charmain realizes that the information does not add up, nor does it explain why some of the bruises don't look fresh. An escalation in the violence puts the girlfriend in a coma and the perpetrator free to sign autographs and joke with his adoring fans. Charmain hopes to catch him in the act and goes undercover: "I want it to mean something." But Hodiak, ever the cynic, advises her to focus on battles she can win. This is one battle I'm not sure we've won yet.

As is Brian and Kristin Shafe's battle against their racist landlord and neighbors. It turns out that the racist campaign against them  supports their landlord's financial interests; he hopes the white neighbors will flee the neighborhood so he can exploit black newcomers. But, at least this time, his ploy is uncovered, and Hodiak becomes a closer friend of the Shafe family as a result.

After five episodes I can already say that, whenever a Manson appearance darkens my screen, I'm less and less clear on what the series creators make of him. This episode sees him enthusiastic about the procurement of new guns and, ever the two-bit pimp, ordering his girls to thank his providers with sexual favors. One of them seems reluctant, which Shafe (undercover) picks on; two reluctant Family members like that were part of the downfall of the real Manson family. But toward the end, Manson, healing from his wounds, shares a bit of personal history--his mother's abandonment--with Katie. "I learned there and then", he says, "that it's better to be the thing people are afraid of than to be afraid." This seems to be a message of hard-wired positivism, which is something I hear a lot when discussing my book project with friends. And yet, people with childhoods at least as horrific as Manson's don't end up committing terrifying crimes. The series seems to be trying to avoid classifying Manson as 'bad' or 'mad'. Which would probably work much better if it were dealing with a fictional villain, akin to David Simon's Avon Barksdale, Stringer Bell, and Marlo Stanfield, and not with a historical figure whose name invariably evokes ultimate evil in the minds of the viewers.

Aquarius, Episode 4: Spoiler Alerts

Episode 4 of Aquarius is an exposition of hypocrisies--in domestic law enforcement, in foreign policy, and in personal life.

At the forefront of the episode are two murders: the one Sam Hodiak is investigating, an intra-racial crime within the black community, and the one no one is investigating, the murder of a black teenager named Michael Younger in the hands of a white cop ("chokehold" is said to be referred to as "cop hold".) When Hodiak comes to investigate the former, the message from the Black Panthers, on behalf of the neighborhood, is that they will not collaborate, nor will they hand him the suspect, until the other murder is solved and the culprit, a police officer well known to them, brought to justice. Among the Black Panthers is the man Hodiak falsely arrested in Episode 1, who tells him:

Bunchy: You pushed out the contradictions and gave birth to me as a black panther. It's the dialectic.
Sam: I don't understand what you're saying, and moreover, you don't understand a word you're saying.
Bunchy: The dialectic. A conflict of opposites. As the man said, you may not be interested in the dialectic, but the dialectic is interested in you.
Sam: I think it's way too early in the morning to quote Trotsky. Oh, look, it reads!

By "it", does Sam refer to Bunchy or to himself? Bunchy accuses him of being "a racist cop in the most racist police force in the nation." Perhaps moved only by the will to secure cooperation on his own investigation, or perhaps realizing a bit of the broader structural problem, Hodiak investigates Younger's murder. He and Shafe crack it and prepare to go to internal investigations. But Cutler, promoted to lieutenant now, stops them. "You think that, after Watts," asks Cutler, "this department going to admit a white cop killed a black teenager?" Shafe's incredulity about the department's decision to bury the murder, and his awakening to the bitter news about the status quo, will undoubtedly echo in many sympathetic post-Ferguson viewers' thoughts, made more bitter because of the passage of time.

What did you learn in school today, dear little boy of mine?
What did you learn in school today, dear little boy of mine?
I learned that policemen are my friends;
I learned that justice never ends;
I learned that murderers die for their crimes,
even though we make a mistake sometimes;
that's what I learned in school today,
that's what I learned in school.

But Hodiak has his own awakening to go through, too. His son, Walt, has gone AWOL. Having served in covert ops in Cambodia, he has realized that the plan is "saturated bombing, killing children, arming crazies, destroying that civilization." Hodiak is not blind to the atrocities of war or to the president's deceit about the Cambodia front, but his moral compass is elsewhere: "if you want to win a war, you got to fight ugly sometimes." But Walt is undeterred and plans to leak what he knows to the press.

What did you learn in school today, dear little boy of mine?
What did you learn in school today, dear little boy of mine?
I learned that Washington never told a lie;
I learned that soldiers seldom die;
I learned that everybody's free,
that's what the teacher said to me;
that's what I learned in school today,
that's what I learned in school.

I learned our government must be strong; 
It's always right and never wrong;
Our leaders are the finest men,
And we elect them again and again;
that's what I learned in school today,
that's what I learned in school.

Finally, the Manson girls' care and concern for each other (if only as fellow disciples) is contrasted, again, to the hypocritical sham marriages of, well, pretty much everyone else, such as the Hodiak and Karn families.

Aquarius, Episode 3: Spoiler Alerts

Two major themes emerge in Episode 3 of Aquarius: the two main characters as embodiments of the two criminal justice models and the fragmented and complicated image of Manson painted by the show.

The first half of the episode, and some scenes in the second half, see Hodiak helping Shafe solve the murder of Art Gladner, for which Shafe's informant was falsely arrested. The investigation takes Hodiak into the noir-like environment of a strip club ("burlesque theater", the owner corrects him). There, he uncovers a drug connection, which leads him to the culprit. It turns out that Hodiak himself contributed to the chain of events that led to the murder: by writing "snitch" on Gladner's forehead, he marked him for execution; and, by breaking the new suspect's arm, he advertised to the other players in the drug business that the suspect was under police control and surveillance. Hodiak does not seem to harbor any guilt or discomfort about his complicity, and his confrontation with Shafe floats this to the surface:

Shafe: He was a person.
Hodiak: Who sold drugs.
Shafe: You're unbelievable. Whatever you want, you do it."
Hodiak: It's true. I can be a tad brusque".

This dialogue, again building on the buddy-cops trope, highlights for 21-century viewers the transformative moment in American policing. Two important developments clash in the years immediately preceding this scene: the emergence of Mapp, Miranda, and Gideon, part of the Warren Court's criminal procedure constitutional revolution, and the arrival of Richard Nixon to the Presidential seat, and with it efforts at bolstering and funding local police stations to counter the revolution.

If you will, the two officers are personal embodiments of Herbert Packer's Two Models of the Criminal Process. Hodiak embodies Nixon's commitment to the crime control model, where the police and prosecution are imbued with immense power and discretion and anything goes as long as crimes are solved and criminals brought to trial quickly and efficiently. By contrast, Shafe embodies the Warren Court's commitment to the due process model, both in terms of adherence to constitutional requirements like the Miranda warnings and in the commitment to equality, illustrated also by his personal life (in this episode, an unknown neighbor paints the words "nigger lover" on his garage, intimidating his wife and child.) For Shafe, the worst thing that can happen is a procedural mistake leading to a wrongful arrest. For Hodiak, it's delay in solving a crime.

These political perspectives are generational, too. Hodiak is a WW2 veteran, with a clear idea of right and wrong, leading him--three years before Daniel Ellsberg would leak the Pentagon papers--to assume that the war in Vietnam is justified and that his son, gone AWOL, is a war criminal. Shafe seems to be a Vietnam or Korea veteran, capable of seeing more shades of gray.

These aspects of the show, at this point, strike me as more interesting and convincing than the Manson family scenes. It seems that the show has a difficult point pinpointing Manson's image: is he a religious leader? a common pimp? how much of his eventual terrifying violence is already in evidence through his malevolence? We see Manson enchanting girls with two-bit New Age speeches that might have been more effective in the Sixties; we also see him controlling and domineering them, treating them as property. But we also see him performing great violence, often with his signature knife. At the same time, some of the lines given to Manson have him effectively expose the destructive hypocrisy of the 1960s; his words to Ken, who comes to him at the bottom of his spiral of shame and self-hatred, are apt. After a particularly heartbreaking and distressing search for furtive sex in a park bathroom (a good reminder of how far we've come), Ken accuses Manson of making him a homosexual:

Ken: You did this to me.
Charlie: I freed you.
Ken: You broke me.
Charlie: You were already broken, Ken. I just pulled you out of your shell.

Manson's perspective, of course, is far more in tune with our modern perspectives on homosexuality. One has to conclude that even a broken clock shows the right time twice a day.