Osler's Razor

No political mayhem during the Christmas season-- we will get plenty in the year to come. But, it is kind of a big day for the Razor….

First, the New York Times quoted the Razor (and linked to it) in a great editorial on clemency today. Check it out! The Razor has been quoted in both the New York Times and the Washington Post this month.

Second, today's Minneapolis Star-Tribune includes my op-ed on a subject you have seen here before: President Obama's Parsimony on Pardons.

So, the end of the season was rough on the Baylor Bears. They had two quarterbacks on the roster, and they both got hurt. Then they pulled a guy who had been a quarterback from his new position as a receiver, and he got hurt. They lost their best receiver and best running back, too, and a key member of the offensive line. At the end of the season, they lost three out of four games, to Texas, Oklahoma, and TCU (having won all of the others to finish 9-3).

Then last night they played UNC in the Russell Athletic Bowl. UNC was ranked tenth, and not decimated by injuries, while Baylor was still missing all of those top players.

What Baylor did was return to an ancient formation, the Single Wing, on offense. Some teams have revived it recently and called it the "Wildcat." It is used almost exclusively to run the ball, a huge change from the pass-happy spread offense that Baylor employs.

It worked. They won, 49-38,  and set a record for the most running yards in any bowl game, anywhere. 

Sometimes, you just have to boldly change strategies.

As you might imagine, I am still working through in my mind what has happened and what is yet to come with federal clemency. The next year will be crucial to resolving whether this principled tool of mercy will be revived.

 While I was very glad to see them, I was bothered by two things that the White House said after the set of grants earlier this month.

First, they sent out a press release announcing that this president has granted more commutations than his immediate predecessors. It was misleading, sure-- this president also has many more petitions before him, so the denominator of the equation (about 9,000) dwarfed the numerator (95 grants of commutation)-- but it also felt like a premature declaration of victory. By claiming success without emphasizing the hard road ahead, it was the moral equivalent of George Bush standing proudly in front of the "Mission Accomplished" banner well before a resolution of the Iraq conflict.

Second, the White House Counsel said this:

“The theory is not that this by itself is going to make a dent in the prison population — this is part of an overall approach,” W. Neil Eggleston, the White House counsel, said in an interview. “He thinks it fits into the broader effort of criminal justice reform. What it does show is, on a very individual basis, the way some sentences in the past have been excessive.”

At one level, Eggleston is exactly right: legislative reform and clemency are both important. Of course Congress should deliver to the President a clean and comprehensive bill that both changes the current law and grants relief to those serving sentences under laws that have been changed.  It is a good thing that the President has been a strong supporter of those changes through reform of the statutes. Those who think the current laws are too harsh, like me, applaud both the movement towards legislative reform and the recent grants of clemency and the promise of more.

However, only one of those things is really up to the President.

The core truth ignored in saying that commutations are "part of an overall approach" is that the Pardon Power is uniquely within the President's ability-- and he alone is accountable for it. The legislation that is the other part of the approach is moribund at the moment, and in the hands of a Congress that somehow is both inactive and unpredictable. That will be Congress's fault if it fails, and the President's victory if it passes-- a nifty deal for the administration. There is no political risk. In contrast, clemency offers a risk if he uses it, as he well knows, especially since he has waited until the last year rather than spreading that risk out over time.

The Pardon Power is a crucial Presidential power. Even setting aside the equities associated with mass incarceration, the fact is that the President has an obligation to save that power from abuse (Clinton) and disuse (the Bushes). He has the imperative to reclaim it as a tool of public morality, and in promoting a particular set of values: balance and mercy.  Clemency shouldn't merely be part of an "overall approach," secondary to legislation, because this tool is fit to the President's hand alone. His true intent, and clear virtue, will be revealed in how he uses it.

It could be that he is holding off on using clemency more aggressively in hopes that a reform bill will pass. I suppose it could be that some in Congress will be swayed against a bill if the President uses the Pardon Power, because it would seem to be furthering his agenda. That is some twisted logic given that the President has already made sentencing reform a clear part of his agenda in several speeches and statements, but the logic of Congress has been pretty twisted lately. More likely is that Ted Cruz, a staunch opponent of reform, will win in Iowa and his fellow Republicans will run away from the issue in deference to him.

The risk the President takes by relying primarily on a Congress that rarely functions rationally is that he could end up with next to nothing to show for his good intentions. For him, it would be a minor blow to his legacy. To those doing life sentences for low-level crimes, like Ronald Blount, the cost would be much higher.

Using clemency bears a risk. Saying you will wait for a bill does not. However, legacies are not measured by risk-averseness, but by bold moves toward a discernible good.

Many people, for one reason or another, have this week off of work. As a prof, I do have the Christmas-to-New-Year's week off of work, but in some prior jobs it was a busy period in the office (or at court). I appreciate the break.

Still, like a lot of people, it makes me a bit uncomfortable. I feel like I have forgotten something, or let it slide.  I check my email, and when there is nothing new I worry that there is some problem with the account.

This isn't good. It should be possible, easy even, to slip away from the cares of work for a week without nagging thoughts, but I am not there yet.

Are you?

When I was a kid, I thought that "Boxing Day" was about kangaroos fighting each other. I'm not sure where this came from-- probably it combined the kinda-true idea that it was an Australian holiday and the sense that boxing was a sort of fighting.

Here in the U.S., many people have the day off, just because it is the day after Christmas. The British idea of "Boxing Day" has never caught on, but it's a good idea to have some holiday on the day after Christmas.

Even though Christmas has consumed most of the month of December (and sometimes most of November, too) in the commercial calendar, in the Christian calendar the holiday does not begin until today. Advent is over, that period of patient waiting, and a time of wonder and celebration begins.

I was in a line recently, and the couple in front of me had a newborn baby. It was tiny and wrapped up tight, fast asleep.  The parents looked completely exhausted, and yet exhilarated-- this mix of weary and joyful.  They couldn't believe that it had happened, that this baby had been born; they kept peeking under the blanket to see their child.

A baby, a newborn, is all potential. There is nothing yet to judge him or her on. Their timeline is an arrow, pointing out towards the future. Any hope or dream can be pinned to that child, and each of those hopes and dreams has a chance of coming to fruition.

How different that is than my own faith, laden down with rules and theological conflict and the expectations of others! Maybe I have lost track of that sense of freedom that comes with this child's birth, the wonder and joy.

But I can change that.

Sari Horwitz wrote a great update on my client, Weldon Angelos, which is appearing in today's Washington Post.  In it, she actually quotes the Razor! So... you read it here first, though I wish it had been a happier moment.

Since it is advent, and Christmas Eve, even, I am going to take a break from Political Mayhem this Thursday. I suspect we will have enough of that in the year coming up...

Have a wonderful Christmas Eve!

As I was traveling through Chicago a few days ago, I got to visit with my sister, who lives just outside that city. We talked about what was going on back in Michigan, and she told me the remarkable and sad story of how Flint, Michigan's water system became poisoned with lead.

The whole story is captured in a wonderful timeline provided by Michigan Radio. In short, Flint has been led by a number of Emergency Managers appointed by Governor Rick Snyder. While these managers quickly rotated in and out (and with the acquiescence or even the suggestion of local leaders), the city decided to save money by changing over from Detroit water to cheaper water from another district. In the process, though, they messed up the transition and ended up pumping water from the Flint River and treating it locally. Almost immediately, it was clear this was a bad plan. The water was discolored and tasted bad. It tested very high for lead, as well. However, officials denied there was a problem.

Now it appears that children in Flint, one of America's poorest cities, may have lead poisoning.

I wasn't one of those people who stayed up all night on Thursday, but I was there on Saturday to see Star Wars: The Force Awakens, and it was great. I am not going to lay out any spoilers, but here are some general thoughts:

1) I have seen all of the Star Wars movies, and this is the first one that doesn't feature at least one terrible actor in a speaking role.  Yay for good acting!

2) The droids are more entertaining in this movie than any of the others. One of them, BB-8, even has a quirk that I share: the habit of looking down at every step before continuing down the stairs.

3) The story was solid. That was one shocking moment, and good character development throughout. The action sequences served the story, not vice versa.

4) As with the other movies, the music was great. That has been a hallmark of the franchise from the beginning.

So, without giving anything away, what did you think?

So, I immediately understood what Gavin was saying:

Vhat stinks? Lutefisk!
Ya, Even I'm not dat Sveedish
Pass da ham der please.

Lefsa was good stuff
Ya, not as good as grandma's
Vee sure do miss her

(Said in a good North Dakota accent)

But not so much my dad (Regret? What does he regret?-- but then I figured it out…):

Anticipation
Consumption, conversation
Regret,contentment

On Friday, just before leaving DC for a few weeks in California and Hawaii, President Obama announced 95 sentence commutations.  When the news hit, I was at the new Surly Brewpub for  lunch with  two lifelong friends, Sleepy Walleye and his brother (shown above)-- it was SW's birthday, and we had special reason to celebrate his life.

My phone blew up with calls and messages. I sat in the car and took a deep breath. It is, I guess, like being 18 and getting an email that says "admission decision"-- just more important.  I knew that one of the 45 emails I had gotten in ten minutes would have a link to a list of those who had received clemency. I found it, and clicked.

I ran down the long list and my heart sank. Two of our clients at the Clemency Resource Center were a part of this set, but many people I have worked for were not. In fact, there are about 8,000 people, many with great equities for release, who have petitions pending but were not on that list.

Feeling overwhelmed, I checked again, looking at the A's and the B's and the F's and the L's. Their names were not there, all of them small-time long-ago drug dealers who have turned their lives around after a decade or more in prison. I drove back to work quietly, thinking about the list, the winners of the freedom lottery.

I had grading to do, but as I sat at my desk with the set of tests, I dreaded the phone ringing. It rang anyways. I looked at the screen and it said what I feared it would: "Unknown," which is how calls from prison always come up.  I let it ring once, twice, three times before pressing "answer."

And they did call. Not in anger, but in sadness. And each time I talked to them about what had happened, how I did not know how they picked the lucky ones.  They told me, in heavy voices, what they would miss: a son's graduation, the last days of a mother in fading health. And each time I hung up and sat in silence. When it got dark around four-thirty, I neglected to turn on my lights. Outside my window the city transformed in the dusk. There is a small hotel across the street. It bustled with activity as people returned from shopping. A man walked out and stepped into a cab, and it drove off taking him wherever he wanted to go. It looked effortless, normal.

In the shroud of quiet, I mourned. This can't be how the movie ends. There has to be more, in the months to come.

I guess that sometimes that is Advent, too. The time is not yet here, and may never come.

A while back I was digging around for something in the basement, and found a cache of notes from college. Even then, it seems, my handwriting was terrible.

In one notebook was a poem. I must have written it when I was 21 or so-- that age where "adult" is really more of a formal title than a reality, like the kid Mormons on bikes with black and white name tags identifying them as "Elder."

The poem was not based on anything that had happened to me at that point. I think it was more an idea of what I thought life might be like in the years then to come:

"What do you want?
What do you want?"
She does not expect an answer
And speaks with such urgency.

But I do know.
I look at her.

"Sing to me
In the dark
In French.

Put the palm
Of your hand
On my chest
Right there.

Take the skin
Of an orange
Rip it open
With your nail
Breathe deep."

I am pretty fascinated by this video, and in particular two points it makes:

1) That ISIS arose in part because of forces  created by the US invasion of Iraq.
2) That President Obama's air strikes against ISIS succeeded in weakening it, and led to the loss of 1/5 of the ISIS-held territory. I did not know that. I thought it was interesting at the Republican debate this week how often the candidates suggested a course of action (such as embedding troops with the Iraqi army or asking tech companies to help with intelligence) that the Obama administration has already done.

What do you think?

I'm getting pretty tired of constantly fielding questions about the Canadian Woodchuck, so here is an informational video that many of you will find helpful:



A few follow-up questions I have gotten from readers:

CraigA:  Do woodchucks live in Canada?

Answer: Yes. I thought that was pretty clear in the video.

IPLawGuy:  There is this one guy who plays for this baseball team I like, who sometimes makes this face when he is pitching, where he totally looks like a woodchuck. When he makes the face, I tell the people sitting by me "look at the woodchuck!" and everyone laughs, because it is true. He totally looks like a woodchuck. Does that mean he is Canadian?

Answer: No.

Christine: I am thinking of dressing my dog up like a woodchuck for Halloween.

Answer: That's not a question.

IPLawGuy: I think JEB! was making a good point about the purple unicorn in the debate.

Christine: I thought so, too! We have a unicorn in our shed.

Answer: What? 

Others may disagree, but Michelle Obama's rap song is waaaaaay better than Laura Bush or Hillary Clinton's (though Barbara Bush rocked the mic)...

I love a haiku that tells a story. IPLawGuy did that this week:

Felt Star. I made that
"NO WAY" says my little bro
We're both past fifty.

As did Trevor Theilen:

Wife's infant portrait.
"Quick! Between her screams!" Snap! Flash!
sapped mom now timeless...

Don't you kind of want to see that?

Earlier this week, I posted a new essay at the Huffington Post, titled "Blessed Impatience at Advent." I hope you will read the whole thing; I am still struggling with the dilemma I describe.

Faith groups tend towards absolutes. It's the nature of the beast; we form groups and then define ourselves in contrast to everyone else. Political groups work the same way in the early stages of an election.

What compromises should we make though, really, to be a part of a religious or political group? It appears that people are leaving political parties and denominations at about the same rate. Is this flight from group identities actually a resurgence of individualism?

Do I really need to explain this one?

Here, I will go first:

My mom uses felt
And scissors, and needle, thread
Each one is precious.

Now it is your turn! Just make it 5 syllables/7 syllables/5 syllables, and have some fun!

As I mentioned a few days ago in reference to Ron Fournier, I am lucky to have friends who are often better-informed on many subjects than I am. One of them is the Waco Farmer, who (like IPLawGuy) has a consistent, reasonable, well-considered conservative viewpoint that I may not agree with, but always need to consider carefully. Sometimes they are right, and I am wrong.

Here are his thoughts on the coming Republican primaries:

One of the pleasures of middle age is the people who have known you for a long time-- who know you and understand you. They know where you came from. I'm lucky to have many of those people in my life (including some people here on the Razor, like IPLawGuy and Christine).

One of them is Ron Fournier, who has had an incredible career as a White House reporter and journalist. I met him for lunch last week, and the conversation led to his column yesterday.  Here is part of it:

FOURNI­ER: OK. Let’s get the per­son­al dis­clos­ure out of the way. Have we ever met be­fore?

OSLER: Yup—we met back when we were scrawny run­ners, stu­dent journ­al­ists, and friends in high school. I like to pre­tend we look pretty much the same now.


FOURNI­ER: We do. But that’s off the re­cord. So tell me why a former fed­er­al pro­sec­utor from De­troit cares so pas­sion­ately about clem­ency for con­victed drug deal­ers and users. Why should any­body care about them?

Ok, you just gotta read all the haiku from last week.  I can't even pick a favorite-- we learned more about Mrs. Claus than I ever imagined!

It turns out that she was, among other things, a Stanford Ph.D. (figures-- the whole Tree thing), and that she lured Santa with "outlandish hats."

Which revelation was most shocking to you?

Tina Fey and Amy Poehler's new movie, "Sisters," opens on the same day as the new Star Wars movie-- December 18.  They apparently know that:

I was all set to blog today about Donald Trump's continuing popularity in the polls. I was going to say that it surprised me, but probably not as much as it surprised many long-time Republicans, who last summer were saying "don't worry, he will fade. If he is leading in December, then we can worry."

But then the shootings in San Bernardino, California happened. Syed Rizwan Farook, an American citizen who is Muslim, went to a holiday party for work. He left, then returned to the banquet with his wife, Tashfeen Malik.  Both were dressed in full battle gear, and they began killing people with assault rifles.  14 died, and 17 were seriously injured. Farook and Malik died later in a shootout with police. They had left behind a complex bomb, which was defused.

I woke up in DC this morning, and on the way to the airport I listened to a report on NPR about the shooting. The reporter said two things:

1) That Syed Rizwan Farook went to Saudi Arabia, came back, grew a beard, and then committed a mass murder and planted a bomb.

2) Officials were trying to determine the motive.

In that moment, right there, I understood why some people like Donald Trump. Because we all know what he would do with those two things.

I also know that it will make things even harder for Americans with names like Syed who have a beard.  Because in many minds, terrorism of this sort is committed by people with names like "Syed," not by people with names like "Tim," or "James" or "Adam." Which is true, until Tim blows up a federal building, and James shoots up a theater and Adam kills people in a church in Charleston.

Yesterday morning was the first Monday of Advent, and something great happened. The snow fell here, the first big snow of the year, and it slowed everything down. The cars went slow, and people walked on the slippery ground with each foot searching for its place before landing, gently.  Even the whoosh of cars was hushed, and the big flakes mottled the light.  Snow makes people wait.

It takes me for a while to catch Advent, though; I'm not there yet. I need more snow.