Terry v. Ohio Deserves History’s Dustbin

April 14, 2015

Madison, Wisconsin; Ferguson, Missouri, Staten Island, New York; the list is endless and growing. And the tears keep flowing. Mostly young Black men deprived of their lives without benefit of any opportunity to defend themselves. They can’t defend themselves physically because that will be treated as a threat on the officers’ lives. They never get a chance to hire an attorney and defend themselves in court. It’s all over before it starts. More lives gone. More families grieving. That, apparently, has become American “justice.”

The Constitution says that we have the right to be free of “unreasonable searches and seizures … and no Warrants shall issue but upon probable cause ….” Probable cause became the standard for the constitutionality of an arrest or seizure of property. In 1968 the Warren Court decided a case known as Terry v. Ohio.[1] In that decision, the Warren Court said that the police do not have to have probable cause to stop and frisk someone. They said “reasonable suspicion” was enough. Although the Warren Court laid the foundations for a much more just society, making clear that segregation by race is “inherently unequal” and unconstitutional, mandating one person one vote and insisting on the enforcement of most of the Bill of Rights, Terry v. Ohio begat the reenactment of the racist patrols that kept the Blacks down on the farm throughout the post-Civil War segregated South, now expanded throughout the nation.

Terry v. Ohio is the source of the irritation of our Black fellow citizens by constant interruptions in their daily business, constant demands that they submit to searches, constant expressions not of cordial greetings from the police but constant demands that our Black fellow Americans obey and respect “the man.”

Terry v. Ohio is a source of many of the interactions between minorities and police that have gone disastrously wrong. It ramps up every exchange. There’s no “Hi, how are you?” It’s “turn around with your hands up” and from that moment everyone is on edge –minority individuals because they are out of control and don’t know what is going to happen to them, the cops because they are now ordering people around and expecting the worst. Indeed, when someone is ordered to put their hands up, any motion that doesn’t look right to the officer now looks dangerous. Everything ramps up. Adding insult to injury, we have statistics – nine-five percent of those stops are useless nonsense.

We would have less crime without Terry v. Ohio. There would be less anger without Terry v. Ohio. African-Americans would be less convinced that the world is determined to keep them down without the irritants enforced under Terry v. Ohio. We would be safer without Terry v. Ohio.

Indeed we were safer before Terry v. Ohio. In the world I grew up in, racial minorities were not a significant source of street crime. The world that so many of us, Black and white for different reasons, have learned to fear, is a post-Terry v. Ohio world.

There’s something else I’d do – I’d give the police a choice – no guns without full civilian accountability, fully empowered civilian review boards with the power to investigate, subpoena and see all documents and interview all witnesses without restrictions, without privileges, contractual barriers or anything else that prevents a full and impartial investigation. And I’d insist that cops turn on their cameras before they stop, seize, arrest or otherwise prevent us from doing our business without restraint.

— This commentary was broadcast on WAMC Northeast Report, April 14, 2015.

[1] 392 U.S. 1 (1968).


Prosecuting the Prosecutor – Thank Heavens

April 7, 2015

Here’s a news flash from the Innocence Project that left me both cheering and in tears:

The Texas State Bar filed a formal accusation of misconduct against the prosecutor in the case of Cameron Todd Willingham, who was executed in 2004 for the arson murder of his three young daughters. The bar accuses the former prosecutor, John H. Jackson, of obstruction of justice, making false statements and concealing evidence favorable to Cameron’s defense, according to a disciplinary petition filed in Navarro County District Court this month.[1]

I was cheering because it is so rare that anyone takes action against any official in the criminal process who wrongfully assists in the conviction and execution of an innocent person. The U.S. Supreme Court blocks any litigation against prosecutors for murderous misconduct. I was crying because the man wrongfully convicted has long since been put to death.

Gov. Rick Perry refused to grant a stay requested by lawyers for Cameron who had been convicted for setting a fire that killed his three daughters. His lawyers asked Perry to stay execution because a report by an independent arson expert found no evidence the fire was intentionally set.

Calling Cameron a “monster,” Perry replaced members of a commission that dared to review the finding of arson.

At the trial, a jailhouse informant testified that Cameron had admitted the crime and that the informant had not been promised anything by the prosecutor for his testimony. Later a letter surfaced in which the informant reminded the prosecutor of his promise of leniency on other charges.

For me, there are so many lessons. One is that innocent until proven guilty is more than a slogan. Another is that the people who are supposed to be enforcing the law are sometimes actually lawless, doing great harm. A third, is that independent outside investigation of the behavior of the police and the prosecutors is a crucial form of accountability in a democratic society. And a fourth is that it is important that independent groups have the courage to follow up and do their best to right those wrongs without being attacked because they are impartially investigating people whose job description makes them seem sacrosanct.

When she was told that the state bar was taking action, Cameron’s step-mother responded: “Who would have ever thought that all this corruption would happen in small-town America?”

There’s another stereotype that needs to go. The devil lurks in all communities and among people of all colors. Cameron incidentally was white. A decent, honest, law enforcement system is important to all of us without regard to race, sex, faith or any other aspects of our background. And if they could do that to a white family, what kind of justice do we think our African-American brothers and sisters are getting.

To me this is a reflection of the problems we have been addressing with respect to police killing of unarmed people, even a child recently, and the Supreme Court’s indifference to injustice in what should be a system of criminal justice, not a system of official lynching. We need to be willing to see and stop misbehavior wherever it happens.

— This commentary was broadcast on WAMC Northeast Report, April 7, 2015.

[1] See https://www.themarshallproject.org/2015/03/18/willingham-prosecutor-accused-of-misconduct and http://www.innocenceproject.org/news-events-exonerations/prosecutor-in-willingham-case-faces-misconduct-charges?utm_source=Main+IP+Email+List&utm_campaign=3a08bbb832-2015_February_Newsletter_02272015&utm_medium=email&utm_term=0_016cb74fd6-3a08bbb832-350279237


Alabama Legislative Black Caucus v. Alabama

March 31, 2015

In Alabama Legislative Black Caucus v. Alabama, decided a week ago on March 25, 2015, the Supreme Court reversed and sent back the lower court decision. The federal district court had thrown out a challenge to Alabama’s 2012 redistricting. That court held that the redistricting was not a racial gerrymander. The Supreme Court said the lower court used the wrong standard.

It’s important to understand what a decision like that does. The Supreme Court did not decide whether the redistricting violated the Constitution or not. It did not decide whether Alabama or the Black Caucus should win. It sent the case back to Alabama with instructions on how to figure out who should win.

The redistricting was accomplished by Alabama statute signed May 31, 2012, before the 2012 election. Plaintiffs filed a lawsuit later that year. The Court held a trial in mid-2013 and reached a decision throwing out the challenges in December of 2013. In 2014 the Supreme Court decided to hear the case. That Court now sends it back for more legal work.

This case was unusual for how quickly the case resulted in an opinion of the U.S. Supreme Court. Even so, after three years of legal proceedings the case is hardly over and could still take years before a resolution.

At the beginning of the proceedings, before any decision in the case, Alabama sought pre-clearance from Attorney General Eric Holder, under the portion of the Voting Rights Act which required Alabama to get the approval of the U.S. Attorney General for the electoral changes. That was called preclearance. In this case Attorney General Holder decided not to object to the districting. Only after Holder pre-cleared the statute did the judicial process get moving. But, while the case was in the lower court, the U.S. Supreme Court decided the pre-clearance provision of the Voting Rights Act was unconstitutional.[1]

Regardless of whether Alabama and Holder or the challengers had the better argument in this case, Holder pre-cleared the districting quickly but it took approximately three years for the courts to reach an inconclusive decision along the way toward ultimately deciding whether the districting is OK. The difference of course is several state and national elections. So, although it didn’t matter in this case, the time difference illustrates that one important result of the U.S. Supreme Court decision in 2013 that the pre-clearance provisions are unconstitutional, is that challengers may have to wait much longer for justice.

Secondly, this 2015 decision was written by Justice Breyer. He wrote for five members of the Court, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Committees often make poor writers. In this case, although Kennedy merely signed Breyer’s opinion, Breyer had to write an opinion to satisfy Justice Kennedy and consistent with Kennedy’s prior opinions. The result is a legal analysis that is hard to pin down and could be used creatively by either the majority or the dissenters in future cases. In that respect, Justice Scalia’s criticism is surely right – this decision won’t stand up.

That doesn’t mean Justice Scalia is right on the merits. It does mean the Justices have not understood the concept of gerrymandering, have not taken seriously enough the work of political scientists to analyze gerrymandering and put the concept on a much stronger, and precise foundation.[2] Law without science is often hollow.

— This commentary was broadcast on WAMC Northeast Report, March 31, 2015.

[1] Shelby County v. Holder, 570 U. S. ___ (2013).

[2] See Brief Of Amici Curiae Professors Gary King, et al, 2006 U.S. S. Ct. Briefs LEXIS 30, in League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006). See also Stephen E. Gottlieb, In ‘Vieth,’ Court Continues to Misunderstand Gerrymandering, N. Y. Law Journal, August 19, 2004, at 4.


Is it Still the Pledge in Arabic?

March 24, 2015

You’ve heard that high school administrators in the Hudson Valley apologized for having the Pledge of Allegiance recited in Arabic for one morning during National Foreign Language Week.

Americans are funny about language. The Founders of this country took pride in knowing foreign languages and visiting other countries. From the beginning until the twentieth century we had robust foreign language speaking communities in the U.S. The Army, until World War I, had regiments recruited by area, language, ethnic group, and race. As a whole, the Army was a tower of Babel and as late as the Civil War and Spanish-American War, people of all backgrounds, speaking many of the world’s languages, served in units with their own languages. Only in the twentieth century did the military break that segregation down, putting people into units without regard to their geographic, linguistic or racial background, expecting soldiers to learn the English they needed to know.[1]

Then there was the movement to prevent children from growing up with any knowledge of German. A pair of very famous U.S. Supreme Court decisions defended the rights of parents to have their children learn German. [2] Thank heavens that President Roosevelt knew German and read Hitler’s Mein Kampf in the unexpurgated German, knew how vicious Hitler was and did everything he could to prepare America to defend against him.

And of course schools didn’t teach Russian after the War. God forbid you could read what they were doing. And more recently Persian. Somehow, while we proclaim the superiority of our way of life and its attractiveness for decent people everywhere, we are afraid that if Americans become familiar with the language of dictators, it is us that need to be afraid, not the dictators. Yet to protect national security we might need to encourage familiarity with foreign languages, even languages of those with whom we have a beef.

In the case of Arabic, it is a language spoken by many more of the victims of the jahadis than the jahadis themselves. Arabic speakers come here for the same reasons that refugees come here from all parts of the globe – for safety, for a chance to survive, and because they know that some Americans are warm and welcoming.

Their knowledge and their skills are valuable here, both their technical skills and their cultural and linguistic knowledge. Like all peoples, including other Americans, most are decent, kind, and industrious and a much smaller proportion aren’t. That’s humanity.

So it’s not such a bad idea that we learn that the Pledge can be and has been recited in all languages, that people can signify their devotion to American ideals of freedom, equality, inclusiveness and welcome, in all languages. For a country that claims to be founded on principles of freedom and equality, we are amazingly unwilling to deal with people who say things a little bit differently than we ourselves. Our culture is surprisingly conformist. Ultimately that demand for if conformity, and the fear it reflects, threatens our future much more than Arabic.

— This commentary was broadcast on WAMC Northeast Report, March 24, 2015.

[1] John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in American From the Colonial Era to the Present 297-311 (New York: Free Press, Peter Karsten, ed., rev. ed. 1986): Bruce White, The American Military and the Melting Pot in World War I, in id. 317-28.

[2] Meyer v. Neb., 262 U.S. 390 (1923); Bartels v. Iowa, 262 U.S. 404 (1923).


Radicalization of Jihadi John

March 17, 2015

Identification of Jihadi John as a British citizen and college graduate has given rise to discussion about what radicalizes young people. There is no single answer but one aspect is to provide alternatives to the choice between deep frustration and dangerous radicalization.

Dreams of self-determination in much of the world have been shattered by dictators, corporate plunder and corruption of kleptocrats, too often with American backing. Dreams were shattered by the failure of pan-Arab and pan-African unity. Religious dreams were shattered by decades of repression of religious parties in the Middle East, jailing opposition leaders and attacking people over their faiths, and repeatedly denying them the fruits of victory at the polls. From the frustration of each failure came worse solutions. Our support and entanglement with repressive regimes have been a problem for us as well. And the damage is hard to undo – change creates instability and therefor danger.

The Humanitarian Law Project wanted to teach a Kurdish group how to bring their grievances to international bodies legally. Our government objected the group was on a terrorist list and teaching it peaceful ways to complain would only help it. The U.S. Supreme Court agreed and the lawyers backed off.[1]

We also have problems with radicalization. Some years ago, my research assistant and I discovered that high school history texts provided no models of citizen protest appropriate to a democracy. They systematically excluded dissent and disagreement in the name of patriotism. One of the books even pictured the Abolitionists before the Civil War as a lunatic fringe.

When people have no legitimate outlet, all hell can break out.

This country was extraordinarily lucky that the Civil Rights Movement had the leadership of wise and thoughtful people like Dr. Martin Luther King who took the path of nonviolence. They provided a path of peaceful protest, albeit protests that put the violence of the racist opposition on every TV set in the country. That reaction showed that everyone had been damaged by the repression of African-Americans, and that repression threatens democracy both because of what it does to the victors and to the losers. It showed that violence boomerangs in a democracy but does a great deal of harm – many paid with their lives for civil rights.

Many of us would just like other Americans to celebrate the virtues of America as it is. But chief among those virtues is the ability to go public with injustices and try to get them changed. That ability is also a powerful defense against home-grown violent movements. Unfortunately, it has been a well-kept secret in many schools. All too often, as in Ferguson, Missouri, we watch political leadership and police treating popular demonstrations as if they have no place in democracy, as if people are just supposed to keep their reactions to themselves.

The great Justice Louis Brandeis wrote, in 1927, that the Founders of our country

“knew that order cannot be secured merely through fear of punishment for its infraction; … that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones.”[2]

When people can’t or don’t understand how to get into that discussion, or are convinced they are powerless to participate, they are left with the hate that “menaces stable government.”

— This commentary was broadcast on WAMC Northeast Report, March 17, 2015.

[1] Humanitarian Law Project v. Holder, 561 U.S. 1 (2010).

[2] Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).


Alzheimers versus Iran

March 10, 2015

No it wasn’t treason. The Constitution defines treason as “levying War against [the United States], or in adhering to their enemies, giving them Aid and Comfort.”

The letter from forty-seven senators addressed to “the Leaders of the Islamic Republic of Iran” tells them the obvious – that we have a constitutional system in which they, forty-seven Republican senators, have the numerical strength to prevent adoption of the result of negotiations in any form other than an executive agreement. They apparently believe that the Iranian leadership had to be educated. Of course much of the Iranian leadership was educated, here.[1] The number of Iranians at all levels of government and private life in Iran who have studied in the U.S. is enormous. They know a great deal more about us than we do about them because, God forbid that we should know anything about – them! Horror. We might be corrupted by knowledge. They have no similar fear of us, despite the rhetoric of some of their fools, clearly not reflecting the majority of Iranians. They come here to study because they respect, and actually like most of us. The idea of making a grand bargain is actually attractive in Iran because most of them, in and out of government, want the U.S. on their side.

Why you ask? Because Iran’s strategic position is a big problem – a Shiite country in a sea of Sunni Muslims.[2] Their whole worldview is based on how to deal with their strategic isolation. They want power, even a bomb, not because of Israel – they know that possession of a bomb in this climate would make them more likely to be attacked, not less. They want strength to intimidate their nearer neighbors from aggression. But alliance with the U.S. would be very valuable to them. A grand bargain? If you understand what Iran needs, you’d cut through the nonsensical rhetoric on both sides and realize we could get a lot of benefits from each other, and any capable Administration would understand and strive for it.

So what’s with these senators. Actually it suggests Alzheimer’s. Some of us remember that a different Administration, a few years ago, eliminated Iraq, Iran’s major enemy in the Middle East, as any sort of threat. And then, even though Iran itself almost went to war with the Taliban,[3] that same Administration made a show of not entering into negotiations with Iran, calling it part of the Axis of Evil – self-contradictorily an Axis consisting of mutual enemies. Having messed up big time a decade ago, some are determined that if they messed up, nobody else is going to get it right. Except for the Alzheimer’s patients – they can’t remember the mistakes.

We talked for decades with the Soviets, the Communist Chinese. But not Iran – that’s off limits. The one Middle Eastern country, other than Israel, whose interests often line up with our own, is nevertheless not worth talking to. Have you ever walked into a nursing home filled with Alzheimers patients? Not all, but unfortunately a lot of them are screaming at everyone in sight and listening to no one. They can’t help it. So now we have the perfect Republican strategy – put the Alzheimers ward into the State Department, and voila, no negotiations, no strategy, no planning, no progress, but it doesn’t matter because nobody’s talking.

— This commentary was broadcast on WAMC Northeast Report, March 10, 2015.

[1] Ishaan Tharoor, Can Iran’s New U.S.-Educated Foreign Minister Mend Ties With Washington? http://world.time.com/2013/08/06/can-irans-new-u-s-educated-foreign-minister-mend-ties-with-washington/; compare Armin Rosen, Why It Doesn’t Really Matter That So Many Iranian Leaders Have Been Educated In The US, http://www.businessinsider.com/does-it-matter-if-irans-leaders-are-us-educated-2014-10#ixzz3TwmKDXlQ.

[2] See Iranian Foreign Policy Since 2001: Alone in the World (Routledge, Thomas Juneau & Sam Razavi eds.,

2013) for excellent analyses of Iranian isolation.

[3] Douglas Jehl, Iran Holds Taliban Responsible for 9 Diplomats’ Deaths, NY Times, September 11, 1998, http://www.nytimes.com/1998/09/11/world/iran-holds-taliban-responsible-for-9-diplomats-deaths.html.


Israel, Iran and American Diplomacy

March 3, 2015

Some people are angry at Israel because they are against Israel. But some of us are angry because we care so much about its survival and think it is being stupid. Popular foreign policy here and everywhere is about waving swords and shooting anyone in their way. It’s a quick and simple solution. But depend too much on the sword and die by the sword.

I’ve been rethinking what’s been going on in the Middle East. Many of us have been assuming that the conflict between Israel and Palestine was central to Middle Eastern policy and events. I have come to realize that the Palestinians have been used mostly as pawns in a very different struggle and it’s very important to understand that.

Radical foreign fighters have shown themselves willing to flock to battles all over the Middle East, except Palestine. They’re in Yemen, Syria, Iraq and Afghanistan. Palestinians have been kicked out of much of the Middle East. Theirs is not a popular cause. So why does it keep coming up?

Iran supports Hamas and Hezbollah as a way to reduce its isolation in the Sunni world. Iran has no significant beef with Israel. Ahmadinejah scored political points with inflammatory rhetoric but he and much of that rhetoric have been replaced. By seeming to make common cause with Sunnis, however, Iran hopes to make themselves harder to oppose or fight. And by directing aid to groups fighting Israel, it immunizes itself from the reaction to some Shiite forces deep in the Sunni world.

It is not in Iran’s interest to destroy Israel. Opposition to Israel is part of Iran’s foreign policy, protecting its bona fides in the Sunni Arab world. Destroy Israel and they’ll need something else. But let’s be clear – Iran can be a serious existential threat to a stupid Israel. By comparison other threats in their neighborhood are pinpricks.

Notice the opportunity that creates. The US, Iran and Israel all have things to give each other in a true, regional grand bargain. We could reduce Iran’s regional isolation because we have considerable influence with many of the regional players, Egypt, Jordan, Saudi Arabia, etc. Iran could contribute to Israel’s safety by backing off its support for Hamas and Hezbollah. And that could make a reliable peace in Palestine possible. Without external support, the Palestinians would not be nearly as threatening to Israel and a two state solution would really be possible.

I don’t mean to imply that it will be easy to get there. There’s a huge history of mistrust on both sides and both sides have good reason to mistrust the other. The nuclear negotiations, themselves difficult and sensitive, could build the mutual confidence necessary for a wider deal. Americans would have to give our leadership the support and confidence needed to work toward that goal, difficult in the face of Republican sabotage before we even know, let alone consider, whether our negotiators have proposed a constructive bargain.

The leadership of all three countries is skittish for ordinary political reasons. All three hold elections. No politician in either country wants to make a mistake on an issue like this. It would be a huge loss if fear of mistakes prevents the effort to reach a settlement of one of the big issues threatening us, Israel, the Palestinians and continually pulling the US into Middle Eastern conflicts.

I don’t have a pipeline to whatever the deal will look like. Nothing is automatic – a lot depends on our diplomacy and pressure. But major improvement is a possible outcome. So as John F. Kennedy famously told us, “Let us never negotiate out of fear. But let us never fear to negotiate.”

— This commentary was broadcast on WAMC Northeast Report, March 3, 2015.


Follow

Get every new post delivered to your Inbox.

Join 242 other followers