Barely Legally

confessions of a moot court bailiff

Just How Many Dogs Do American Cops Kill

2016-06-30-just-how-many-dogs-do-american-cops-kill

layout: post title: Just How Many Dogs do American Cops Kill? date: 2016-06-30 20:05 categories: – The News

external-url: http://mimesislaw.com/fault-lines/puppycide-just-how-many-dogs-do-american-cops-kill/10561

David Meyer Lindenberg, writing for Mimesis Law, on the rather high number of dogs killed by American police every year. The other surprising thing:

The police penchant for shooting dogs gets totally inexplicable when you realize that not one cop has been killed by a dog in the past 80 years. According to the Officer Down Memorial Page, the last cop to die in this way was Officer Jackson Bennett of Gainesville, FL, who was bitten by a rabid street dog while on patrol and died April 27, 1936. Domesticated dogs haven’t killed anyone in at least the last century.

A century! That can’t be true, can it?

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How American Politics Went Insane

Jonathan Rauch in The Atlantic, writing about… well, that thing we’re all obssessed with. He argues that the political process has become so decentralized that it barely takes any actual support to make it onto a ballot.

According to the Pew Research Center, in the first 12 presidential-primary contests of 2016, only 17 percent of eligible voters participated in Republican primaries, and only 12 percent in Democratic primaries. In other words, Donald Trump seized the lead in the primary process by winning a mere plurality of a mere fraction of the electorate. In off-year congressional primaries, when turnout is even lower, it’s even easier for the tail to wag the dog.

In the 2010 Delaware Senate race, Christine “I am not a witch” O’Donnell secured the Republican nomination by winning just a sixth of the state’s registered Republicans, thereby handing a competitive seat to the Democrats. Surveying congressional primaries for a 2014 Brookings Institution report, the journalists Jill Lawrence and Walter Shapiro observed: “The universe of those who actually cast primary ballots is small and hyper-partisan, and rewards candidates who hew to ideological orthodoxy.”

This is actually one of the conclusions—not premises—of Rauch’s argument. His premise is that political power brokers, backroom dealmaking, and the kind of shady things most people hate are actually pretty healthy for a democracy.

I’m not entirely certain, but it’s an argument worth entertaining.

No Such Thing

Lauren Woodman asks an interesting question:Are we too obsessed with data?:

In the 1970s, 7-Eleven in Japan became independent from its parent, Southland Corporation. The CEO had to build a viable business in a tough economy. Every month, each store manager would receive reams of data, but it wasn’t effective until the CEO stripped out the noise and provided just four critical data points that had the greatest relevance to drive the local purchasing that each store was empowered to do on their own.

Those points – what sold the day before, what sold the same day a year ago, what sold the last time the weather was the same, and what other stores sold the day before – were transformative. Within a year, 7-Eleven had turned a corner, and for 30 years, remained the most profitable retailer in Japan. It wasn’t about the Big Data; it was figuring out what data was relevant, actionable and empowered local managers to make nimble decisions.

I worked at a Hollywood Video in college, and always wondered why they collected information about the weather at the end of the day. “Knowing” was apparently the only half of the battle Hollywood Video successfully waged, as they went bankrupt before I made it out of law school.

Of course, in order to pick the four right data points out of the “reams of data,” 7-Eleven’s CEO had to have reams of data to begin with. It’s a multiple choice test that the CEO passed, not a fill-in-the-blank test.

How to Get Away With Manslaughter

Former NYPD officer Peter Liang, who was actually convicted for manslaughter for the death of an unarmed black man, isn’t going to prison. He will receive five years of probation instead:

Liang faced up to a 15-year prison sentence for the second-degree manslaughter of Akai Gurley, but New York supreme court judge Danny Chun reduced his conviction to criminally negligent homicide moments before the sentence was delivered. The prosecution stated its intention to appeal against the reduction in charges. But the sentence handed down was nearly identical to what was recommended by the DA, Ken Thompson, in March.

There’s a lot going on here. I’m most struck by the silence of the NYPD Patrolman’s Benevolent Association, the largest of the half-dozen unions which represent police officers. Usually, when an officer kills someone, PBA’s President Pat Lynch screams his head off about what a perfect angel the officer was, and what a cowardly thug the deceased was. This case might represent the most that Lynch—the Thrasymachus of Manhattan—has kept his mouth shut in fifteen years.

Then there’s the District Attorney, who after successfully convincing a jury to convict Liang of second-degree manslaughter, recommends five years of probation and community service. (Note that second-degree manslaughter is a Class C Felony punishable by up to fifteen years in prison.) The judge agrees with the DA and metes out the recommended sentence, but reduces the charge to criminally negligent homicide, a Class E Felony punishable by four years in prison.

So what’s the difference between second-degree manslaughter and criminally negligent homicide? In Liang’s case, there’s no difference. The DA recommended probation and community service for the one, and the judge sentenced Liang to exactly that for the other crime. But this here’s a law blog, so roll up your sleeves.

Political Debt

Confession time: I’m a bit of a political junkie, and there’s nothing like mainlining coverage of the presidential elections. Sweet, sweet black tar polls and thinkpieces. Even if you’re not following along as obsessively as I am, you know that this one isn’t going the way anyone thought it would. Donald Trump has an insurmountable lead for the Republican nomination at this point, and I’ve read an unhealthy number of thinkpieces about why exactly that might be.

If you were to read one explanation, Josh Marshall, editor in chief of Talking Points Memo, has the best version. It’s all about technical debt:

If we do a project in a rough and ready way, which is often what we can manage under the time and budget constraints we face, we will build up a “debt” we’ll eventually have to pay back. Basically, if we do it fast, we’ll later have to go back and rework or even replace the code to make it robust enough for the long haul, interoperate with other code that runs our site or simply be truly functional as opposed just barely doing what we need it to. There’s no right or wrong answer; it’s simply a management challenge to know when to lean one way or the other. But if you build up too much of this debt the problem can start to grow not in a linear but an exponential fashion, until the system begins to cave in on itself with internal decay, breakdowns of interoperability and emergent failures which grow from both.

This is a fairly good description of what the media is now wrongly defining as the GOP’s ‘Trump problem’, only in this case the problem isn’t programming debt. It’s a build up of what we might call ‘hate debt’ and ‘nonsense debt’ that has been growing up for years.

But if you want a great description of what exactly this “debt” looked like when it was issued, you want Ben Fountain’s American crossroads: Reagan, Trump and the devil down south. Start with the disappearance and murder of three young black men who were registering African Americans to vote in Mississippi in 1964.

Mississippi officials insisted that the whole thing was a hoax, a publicity stunt to drum up support for the civil rights movement. Mississippi senator James Eastland alleged that the movement’s Meridian office had reported the three men missing in advance of their disappearance, and he called on President Johnson to launch an investigation into “civil rights fraud”. Leaders of the Mississippi Sovereignty Commission asserted that the young men were regularly being sighted alive and well, most reliably in Alabama. Others claimed that they were hiding out in Cuba, “with Fidel Castro and the communists”.

The bodies of the young men were eventually discovered buried in an earthen dam. It wasn’t the work of one or two bad apples:

In the months and years to follow, the story of their deaths would gradually come to light: their abduction by a Ku Klux Klan posse; the collusion of local law enforcement; the point-blank execution in a clearing in the woods. Far from being the work of a few vigilantes, a quite distinct picture emerges of a brutal, highly organized power structure procuring the murders of these three young men, then spinning hard to keep the truth from coming to light. Elected officials. Citizens councils. Law enforcement. The “community”.

And that’s where Reagan went to speak the words “I believe in states’ rights”, in his first appearance as the Republican nominee. These days we know it as dog-whistle politics, that coded language Lee Atwater was talking about. Reagan did not, by the way, mention Chaney, Schwerner or Goodman, whose bodies had been found a few miles away. That screaming silence, that was a dog whistle too, and to think that Reagan didn’t know what he was doing is to consign him to the ranks of the epically stupid. He’d campaigned for Goldwater. He was a two-term governor of California, and a veteran of national politics. The Neshoba County speech stands as one of the true masterpieces of the Southern Strategy, a dog whistle that blew out the eardrums of every racist reactionary within 3,000 miles.

I don’t know about you, but that didn’t come up in my American history classes. It seems like an unmistakable message.

Don’t Get Cocky, Star Fox

Emma Boyle, Gamer-in-Chief at Gadgette, writing about the backlash against easy modes in video games:

It’s because there are so many different ways that I and other people enjoy games that I can’t see what the issue is with giving players the best chance to enjoy a game in their own way. By including invincible mode, Star Fox Zero’s developers aren’t negatively shutting players out; they’re trying to bring more in. They’re trying to make the game enjoyable to as wide an audience as possible by allowing them to customise the gameplay experience to suit either their experience level or simply their gaming priorities.

Unfortunately many players only seem to like customising the gaming experience when it’s a customisation that suits them. There was outrage when a dad changed The Legend of Zelda to make it gender neutral for his daughter but oddly the comments section for this mod that allows players to see “realistic bounce and jiggle” for character breasts in Skyrim didn’t attract quite the same amount of vitriol.

That’s one hell of a mic drop. Also, not to pull Nerd Rank on the kids whining about an easy mode in the new Star Fox, but back in my day, games were impossible to beat. Kids today have it easy, whether they think so or not.

The Economics of Controlled Substances

Amanda Lewis for Buzzfeed, on the “green boom” in states where recently-legalized marijuana sales are leaving some folks behind:

For most jobs, experience will help you get ahead. In the marijuana industry, it’s not that simple. Yes, investors and state governments are eager to hire and license people with expertise in how to cultivate, cure, trim, and process cannabis. But it can’t be someone who got caught. Which for the most part means it can’t be someone who is black.

Even though research shows people of all races are about equally likely to have broken the law by growing, smoking, or selling marijuana, black people are much more likely to have been arrested for it. Black people are much more likely to have ended up with a criminal record because of it. And every state that has legalized medical or recreational marijuana bans people with drug felonies from working at, owning, investing in, or sitting on the board of a cannabis business. After having borne the brunt of the “war on drugs,” black Americans are now largely missing out on the economic opportunities created by legalization.

I would hasten to add that the burgeoning marijuana industry isn’t the only one in which a decade-old felony conviction disqualifies candidates. That’s not a knock on Lewis’s reporting. Her article is flat-out amazing, and if she interviewed non-white people from every corner of the American economy with lives shattered by war on drugs convictions, she’d never finish.

Which reminds me of the New York Times, In Heroin Crisis, White Families Seek Gentler War on Drugs:

When the nation’s long-running war against drugs was defined by the crack epidemic and based in poor, predominantly black urban areas, the public response was defined by zero tolerance and stiff prison sentences. But today’s heroin crisis is different. While heroin use has climbed among all demographic groups, it has skyrocketed among whites; nearly 90 percent of those who tried heroin for the first time in the last decade were white.

Some black scholars said they welcomed the shift, while expressing frustration that earlier calls by African-Americans for a more empathetic approach were largely ignored.

“This new turn to a more compassionate view of those addicted to heroin is welcome,” said Kimberlé Williams Crenshaw, who specializes in racial issues at Columbia and U.C.L.A. law schools. “But,” she added, “one cannot help notice that had this compassion existed for African-Americans caught up in addiction and the behaviors it produces, the devastating impact of mass incarceration upon entire communities would never have happened.”

And hey, one more for the road: the head of the Women’s Tennis Association thinks that Maria Sharapova “made an honest mistake” and Nike sounds willing to forgive her.

Philosophy of Robot Death Squads

Recommended reading: Jeffrey Goldberg’s 20,000-word novella on President Obama’s foreign policy in The Atlantic. We’re in the final year of Obama’s presidency, so a lot of this isn’t really news, but there are still plenty of great quotes from his advisors on thought processes and sausage making. For example, you know America didn’t fight a ground war in Libya, and we’re even more hands-off in Syria. What differentiates those theaters, and how that affected the president’s decision, isn’t always clear from daily reporting. And then there are the drones:

This is one of the larger ironies of the Obama presidency: He has relentlessly questioned the efficacy of force, but he has also become the most successful terrorist-hunter in the history of the presidency, one who will hand to his successor a set of tools an accomplished assassin would envy. “He applies different standards to direct threats to the U.S.,” Ben Rhodes says. “For instance, despite his misgivings about Syria, he has not had a second thought about drones.” Some critics argue he should have had a few second thoughts about what they see as the overuse of drones. But John Brennan, Obama’s CIA director, told me recently that he and the president “have similar views. One of them is that sometimes you have to take a life to save even more lives. We have a similar view of just-war theory. The president requires near-certainty of no collateral damage. But if he believes it is necessary to act, he doesn’t hesitate.”

If anything, that paragraph understates the extent to which America has a swarm of flying murder bots. The president can and has ordered the death by remote control of thousands of foreign nationals and even a handful of American citizens. Suffice to say, the Constitution is completely silent on the issue of presidential robot death squads, flying or otherwise. But killing American citizens without due process is absolutely unconstitutional. That begs the question, though: have you ever wondered what due process means?

cool because this is a law blog

You can probably think of process as the stuff that happens during the run-up to the trial, during the trial, and then at the appeal. Your lawyer versus the government’s lawyer. Motion to do X, hearing on Y. Judge rules on this, jury finds that. There are so many moving and interlocking pieces—prejudicial evidence gets excluded, witnesses got cross-examined, etc—that even if some mistakes are made, things will balance out in the end. Overall, the legal process gets it right.

President Obama, a former constitutional law professor, would be the first to explain that the process someone is due under the Constitution can depend on the circumstances. For example, it violates due process to execute someone who has only been accused of a crime. But if that person points a gun at a police officer, they’re suddenly due a whole lot less process while the officer’s life is in danger.

White House lawyers wrote a memo explaining how much due process you have if you’re accused of being a terrorist, but you haven’t been tried or convicted, and if you’re in a foreign country. The relevant part of that memo starts on page 38, although you’ll note much of the discussion has been redacted. Secret logic for killing American citizens isn’t a great look, to say the least.

The memo comes down to ‘just like a police officer can kill a suspect without a trial, flying murder bots can kill American-citizen terrorists without a trial.’ There are some impressive legal phrases trotted out to frame this, like “continued and imminent threat of violence or death” to (other) American citizens, and the “highest officials in the Intelligence Community” having reviewed the facts behind the kill order. Additionally, the White House needs to show that capture is “infeasible,” but that the CIA and Department of Defense are “continually monitoring” whether the circumstances have changed so a capture would be feasible.

There’s also this odd bit about “the realities of combat” and “the weight of the government’s interest in using authorized lethal force,” and I don’t really understand the legal implications of either of those. Not to be overly reductive, but the former is essentially “hey, shit happens” and the latter boils down to “it’s important that this look official.”

Remember a few paragraphs ago, that bit where I said that the legal process was built to have a lot of moving pieces, so errors in one direction can balance out errors in another? At a certain point in this memo, it feels like the lawyers kept adding these legal standards—like the “realities of combat” test, or the “infeasible capture” test—to make the process feel as deliberative and complex as the judicial process.

It’s a tough sell, because there are other important parts to due process; the government is zealously advocating one way while the defendant’s lawyer is pushing the other way and a judge makes sure both sides follow the rules. It’s not enough to just have parts that can move. Your car’s transmission has parts that can move, but you’re going to be late for work if the gears are all laid out randomly.

my favorite part

The Atlantic article doesn’t quite go into these legal fine points. Again, at only 20,000 words, there just wasn’t enough time to squeeze in everything. But there are definitely a number of gems here:

Those who speak with Obama about jihadist thought say that he possesses a no-illusions understanding of the forces that drive apocalyptic violence among radical Muslims, but he has been careful about articulating that publicly, out of concern that he will exacerbate anti-Muslim xenophobia. He has a tragic realist’s understanding of sin, cowardice, and corruption, and a Hobbesian appreciation of how fear shapes human behavior. And yet he consistently, and with apparent sincerity, professes optimism that the world is bending toward justice. He is, in a way, a Hobbesian optimist.

A Hobbesian optimist! It’s a delightful turn of phrase that reminds me of one of my favorite quotes: “the test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.” Optimists who think that humans are built to war against each other forever? Classic!

In all seriousness, I think Hobbes’s point is that the world bends toward justice because the Leviathan sits on the bad guys until they stop being bad guys. That’s an intrinsically optimistic worldview, because the bad guys stop being bad guys and get day jobs. It makes sense for President Obama to think this way: he’s the guy whose job is basically “Leviathan of all Leviathans.” If he thinks the world is bending toward justice, that means he’s confident that he’s doing enough bending.