Osler's Razor

As people who have been following this blog well know, I'm very concerned about the impact of COVID-19 in prisons. I hope I'm wrong, but it does seem that the danger is very real of a disastrous outbreak, based on the nature of this disease and the conditions inherent to incarceration.

Some states are taking strong pro-active measures. New York, for example, has announced some releases. Texas, meanwhile is going in the other direction. My former student David Moore sent me a link to an order signed by Texas Governor Greg Abbott, which you can read here. Rather than expand releases, it restricts the ability of local officials and wardens from releasing prisoners who are categorized as "violent offenders."

There is a natural appeal to that, but the problem is that the order is terribly over-broad. We apply the label of "violent offender" to many people whose crime did not involve violence, for example. And some people convicted of violent offenses have proven themselves over years or decades to have been rehabilitated (it is possible, after all).

We'll see what happens next...

I wrote this new piece about COVID-19 and prisons at the end of last week. It may already be too late. The danger is very real.

Wow! You guys knocked it out with inventiveness with your haiku about... inventiveness.

We go this one from John Willome, which I had to think about for a minute, and then it sunk in:

Air conditioning
Political power shift
To the southern states.

And this from Jill Scoggins:

What is the best thing
God ever invented? Why,
grandchildren, of course!

IPLawGuy had this (which I liked a lot, and agree with):

Thomas Edison
Boyhood hero, still admired
Would love to create.

And Christine had this bit of honest humility:

Always so in awe
of people who can invent
not how my brain works.

Since we have all been driven inside, a few of us here had a short-story writing confab, where we each wrote a story about a piece of art we knew. This was my contribution. I would like to emphasize that it is a work of fiction, and does not involve me or anyone I know (though the painting is real).

When I was a kid, this was the funniest thing I had ever seen:

Now that everyone is running around building improvised medical ventilators, it's a good time to consider the role of invention in our lives. Pictured above, for example, is a device my dad rigged up for Osler Island to convey things from the dock up to the cabin. 

It can be an informal invention, or something we all know-- go to town with it! Here, I will go first:

Nineteen seventies-
Someone actually invented
Crack cocaine. But who?

Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun.

Certainly, clemency can only be one part of a greater effort. It must be combined with other measures, including a beefing-up of staff to clean and care for the sick, and the better provision of cleaning and medical materials and resources. Just as importantly,  we need to minimize arrests and detentions, and fully utilize the release measures embedded in the First Step Act and other statutes that can allow for release of prisoners. 

I'm devoting Wednesdays on the blog to profiling my intriguing classmates in the Yale Law class of 1990. It has been quite a voyage of discovery!

People often assume that Yale Law is a bastion of liberalism, but the reality is that many influential conservatives (beyond Brett Kavanaugh) come from the school. For some of them, it was pretty easy to see when we were in school, others less so. Over time, too, I have found myself collaborating with some of them on projects where our interests overlap. It is odd, though, that conservatives condemn the school as liberal even while so many of their most successful fellow travelers (including representatives of very different strands of conservatism, such as John Bolton and Pat Robertson) were formed by the place.

Peter Berkowitz is one of those conservative Yale Law grads; he currently serves as the Director of Policy Planning under Secretary of State Mike Pompeo.

Berkowitz came to Yale Law from undergrad at Swarthmore and after obtaining a Masters in Philosophy from the Hebrew University in Jerusalem. In 1990 he not only got a JD from Yale but a Ph.D. in Political Science from the University (which is pretty impressive-- I can't imagine doing both at the same time).  He went straight from Yale to Harvard, where he taught in the Government Department until 1999.

From there, he transitioned to teaching at George Mason's law school (now named after Justice Scalia), where he taught until 2007.

At that point, he headed west and became a Senior Fellow at Stanford's Hoover Institution. From there, he was chosen for his current post at the State Department.

He is a critic of progressive politics and the "social justice agenda," and regularly writes on issues relating to education and political philosophy.

Nice work! If we have to live online, this is the way to do it.

We had this gem from poet Megan Willome:

Dog walk before dawn,
a woman with her dog calls,
"Good morning! Be well!"

And Christine gave us this:

Week in the garden
Talking to my plants; green thumb...
Best isolation.

Susan Stabile (who knows the ways of the woods) offered this:

I don't need too much--
Some sunshine, trees, and some grass.
A long walk soothes me.

And finally we received a long missive from Quang Cao Dai Phat, which included this (translated from the original Vietnamese):

This type of table
Material always makes
Shiny over time.

I'm struggling.

I have connected with the internet via this blog every day since 2006, but I'm not someone who can sustain himself online. I'm an introvert, but I need to be in a society with people I can see and talk to and respond with to something that is funny or sad or thrilling.

As a teacher, I feed off of the energy of my students. I love to look out at the class and see who is engaged, who is upset by a rule or outcome, who is almost asleep. One of my favorite moments in class was when I explained the federal practice of relevant conduct, which allows someone to be sentenced for conduct that they had been acquitted of by a jury. Sara Sommervold threw both hands straight up over her head like Kermit the Frog and said "no!" That's a moment that comes when you see people and feel their mood.

Now I wear a headset like some kind of unlicensed helicopter pilot and speak into the void while glimpsing at tiny, almost indiscernible, moving pictures of my students. I am doing my best. It is not the same.

I'm doing it not just because we must, but because it is the right thing to do for those who are most vulnerable. I get that, and agree with it.

But there is a cost. And that will become more apparent as time goes on.

Churches are dealing with this challenge in a number of ways. Well, not a big number-- maybe two or three ways, actually. Most of them are having some kind of online service, where the minister will be in his office or her pulpit, alone.  Congregants are encouraged to sing along at home. It's kind of depressing. We were asked, after all, to gather in his name.

But, right now, we can't.  That is one of the costs of all this. In the end, I suspect that the social, spiritual, and economic costs of the pandemic will be all intermingled. Churches will close not just because they are no longer economically viable, but because they are no longer spiritually viable-- they will not be able to minister to those in need when that need is greatest. People will die alone, drift from faith, and despair.

Our fight must be against that, too.

In 2015, Bill Gates described what needed to be done to prepare for a likely pandemic. And... we didn't do it. 

With so many indoor activities (movies, museums, shows, restaurants, gyms, bars, stores) closed for Coronavirus season, a lot of people are rediscovering the outdoors. Of course, not every outdoor activity is available-- the picture above was taken on my trip with IPLawGuy to Whistler last week, shortly before it closed for the season-- but no one is closing down the walking paths, the bike trails, or the woods.

So let's haiku about that this week-- the adventurous (alone or in small groups) that can take us into the great outdoors. Here, I will go first:

Lake Harriett calls
Ice is thinning, snow recedes
She invites us near.

Now it is your turn! Just use the 5/7/5 syllable pattern and have some fun...

So, a lot has happened in the last week!  Schools closed, businesses shut down, restaurants locked up, and gyms went quiet. Even churches are dark. It is a very strange time.

So what happens next?

Here are a few thoughts on that:

1) This is going to reshape the retail market, and we are going to lose a lot of stores, big and small. Sure, we can order stuff online, but there is a real loss when local retailers close down. They are often community hubs, the places where we see one another.

2)  The federal government seems committed to a trillion-dollar stimulus package, much of it going to large corporations. I have mixed feelings about this. I see the necessity for a stimulus, but as I argued in 2008-2009, debt matters, too. We already are running a trillion-dollar annual debt under the Trump administration, and doubling that isn't sustainable. There will be long-term and short-term problems. The long-term problem is that debt service will become a more significant part of our federal budget. The short-term problem is that there will be political demands to reduce debt when this crisis fades, and that can come from the military, social security/Medicare/or everything else (Courts, transportation, housing, etc).

3)  The coronavirus itself is the biggest threat. I am starting to see something on my Twitter feed that I have feared: people reporting that people they knew died of Covid-19.  That's a threshold. But how bad it gets from here is the real unknown.

4) Our social networks are going to change, and the longer isolation continues, the more it will change. I predict we are going to see underground societies develop, some of them based on in-person human interaction that is otherwise verboten. And out of those underground societies (online and in person), we may see new forms of art, music, and theater develop. New York will be the epicenter of this-- people there will not be able to stay holed up in small apartments.

For now, the best we can do is watch out for each other and do our jobs the best we can.

I have been devoting Wednesdays (mostly) to profiling my classmates in the Yale Law class of 1990 (you can see a partial recap with links here). It has been a fascinating project; they have gone on to do some remarkable things.

Michael Caglioti was yet another memorable member of the class of 1990. He came to Yale six years after graduating as the valedictorian from Iona College in his hometown of New Rochelle, New York. Then-- and before matriculation at Yale Law-- he received two Masters degrees from Princeton: one in Public Affairs and another in Politics.  At Yale, he served with me as a Senior Editor of the Law Journal, and (unlike me) was also an officer on another journal, the Yale Journal of International Law.

After law school, he moved to DC and joined one of America's leading firms, Arnold and Porter. He became a partner there in 1998, having proven himself working on a variety of international cases for leading corporations. It's the kind of partnership many lawyers dream of and relatively few achieve.

To explain what happened next, I have to reveal something about Michael that never stopped him from making all of this happen: Michael had a severe neuromuscular disease, spinal muscular atrophy. He was never able to walk, and utilized a motorized wheelchair.

That wheelchair, unfortunately, was the source of the undoing of what Michael had worked so hard to achieve. In 2000, just a few years after he made partner, the wheelchair malfunctioned and he was badly hurt (he describes this himself in an essay in the Washington Lawyer, which you can read here).   Because of his injuries, he had to leave the partnership he had earned and incurred over $500,000 in medical expenses.  It sounds like a very sad turning point in his life.

Michael died on January 4, 2018.

Those of you who have followed these profiles know that usually I run a current photo with the profile, and sometimes a video. I couldn't find a picture online of Michael; even the essay he authored was accompanied only by a photo of a wheelchair. In a way that is fitting, I suppose. He was a person defined by his remarkable mind and spirit, and perhaps the memory of that should be enough.

Yesterday, the Governor of Minnesota, Tim Walz, closed pretty much everything worth going to: restaurants, bars, gyms, theaters, churches, and pretty much every other place that people gather. He was following the lead of others across the country in doing so.

On my way home from work yesterday I stopped at Costco to pick up a few things--olive oil, parmesan cheese--and it was there that I realized that we have reached The Turn where things get real. They were out of chicken in any form. They were out of pretty much everything made of paper. There was no... well, they were out of a lot of stuff.

That was the end of a day that also included teaching my first lecture class on Zoom, where I'm looking at a screen and seeing tiny little pictures of my students. It didn't go great-- I'll be honest. I'm a person who feeds off the mood of my students, who relishes the give-and-take of a courtroom or lively classroom. I need to read a room. Perhaps I will get used to this, but it will be an uphill struggle.

And, of course, I have it good. I have a job where I can at least try to do it well in these circumstances.  The people who are really suffering are the less affluent, especially those in the gig economy. There are going to be deep and enduring tragedies that come out of this, breaks in family trees and sad stories that are alluded to years later.

I suspect that in the coming weeks we are going to have to build new and different social structures. I don't know what that will look like-- after all, one week ago I was out at Whistler skiing with IPLawGuy, never imagining what the next week would hold.

Another good week! I loved this one from my dad:

I am a good host
but I am shutting the door
on new viral guests.

And Christine chimed in with her method:

Social distancing
14 acres,spring gardens
7 yards of mulch.

As did Jill Scoggins, with some great advice:

Distance between us?
If we must. But let us still
act with love's kindness.

It's a strange time.

Our routines, big and small, are disrupted. If you were in school, now you aren't; those who were going to travel won't, and those who were going to not travel must.  There is something scary out there that we cannot see, and we have no leader to tell us hard truths.

You know those days we remember? These are those days.

No March Madness. No college graduation. No church service. No classroom. No good in the frozen vegetable section of the store. No planes, no late night shows, no museums or auto shows or operas. Who are we now?

We are what we can be at our best. We can love one another, sacrifice for others, we can be kind to those we draw near or who cross our path.

It will probably get worse before it gets better, but hopefully we will all be better, too. We don't have  a leader, but we can have many leaders. And I suspect we will.

Is blues the healer? For some people, maybe. But for others, it will be something else. One of the hardest parts of this crisis is that a lot of people are going to be separated from the things they usually count on in times of crisis. There are some, of course, for whom that comfort comes in the moment that they receive the bread and drink the wine, and that will be held away from them. How deep a tragedy is that?

IPLawGuy sent me this fascinating article by Jonathon V. Last, which contrasts politicians who build coalitions (Obama, Reagan) with those who lead movements (Trump, Sanders). Here is the meat of the analysis:

It's hard to disagree with that. Later on, Last also makes a point that I keep conveying to people-- that President Trump won the narrowest of victories, and the idea that he will be difficult to defeat is ludicrous. I'm not saying the Democrats will win the White House-- they have a tendency to mess that up (see 2016)-- just that a decent candidate building a decent coalition should be able to get there.

The reason is rooted in Trump's constant play to his base; that is, the base of his movement. It alienates some people, who seem to be pushed into a Biden coalition.

That said, in my own field of study it is clear that Trump is making a play to African Americans by promoting his efforts-- well, effort (it is pretty much just the First Step Act)-- in reforming criminal justice. Sadly, Biden is vulnerable to that, since he pushed the 100-1 ratio between crack and powder, a raft of mandatory minimums, and tough sanctions on MDMA, among other things. And Biden has no real plan to address criminal justice going forward, other than a softer approach to marijuana, spending lots of money, and variations on "what Obama did"-- and that is no plan at all.

I have been devoting Wednesdays here at the blog to profiling my classmates in the Yale Law School class of 1990. This week we meet Heathcliff.

There were a lot of characters in our class, but few were as memorable as Heathcliff. He was unique in that he had a parent who was formerly incarcerated, which allowed for insights few of the rest of us could offer. He was definitely an out-of-the-box thinker who often had provocative ideas in class. Also, he was a cat. And had a flame-throwing gravy robot.

Heathcliff came to Yale Law fresh out of Yale College, where he lived in Stiles College and wrote for the sports section of the Yale Daily News. At the law school, he was Notes Editor for the Law Journal and active in the Federalist Society.

After law school, Heathcliff clerked on the 3rd Circuit for Judge Stapleton, and then in the Ninth Circuit for Judge Alex Kozinski before a clerkship with Supreme Court Justice Anthony Kennedy.  After that, he worked for Independent Counsel Ken Starr in the investigation into President Clinton.

Then things got kind of weird. Heathcliff moved into a house with an old lady, and got obsessed with ham, gorillas, and apes. He was sometimes seen flying a ham sandwich at the end of a string, and worked somewhere in the Bush administration. He seemed to have some kind of business making and marketing "message helmets." After that, we kind of lost track of him.

So if you know what happened, drop a line.

Coronavirus? More like the Smith-Corona virus, given the number of great poems you submitted! (and yeah, I realize that you have to either be pretty old or some kind of typewriter fan to get that joke).

First of all,  is Gavin in quarantine in a middle school?!?? His haiku made it sound like it:

Fenced in, quarantined
I watch the teens dance in masks
Spirit inspires.

Meanwhile, Christine is prepared:

Past experience
tells me at four days people
will go stir crazy


*********

Thankful for many
acres and outdoor chores
to keep me busy

Set to place my mulch
order. That can occupy
me for sev'ral days

Megan Willome, maybe not yet:

I'm supposed to care
I suppose I will, later--
Sunny dogs nap on

The Medievalist probably has the Coronavirus:

I have a fever,
Ex post facto nasal drip.
Pass the Tylenol.

While Amy has questions:

Pariah cruise ships
Claustrophobic death boats. Stuck
On an airplane, coughing

Seatmates. Usual
lunch spot -- music library--
Too warm with phlegm-y

Undergrads. Outside,
open spaces, brisk air, is
The only place to be.

Meanwhile, IPLawguy perhaps isn't taking the whole thing seriously yet:

Weird Al Yancovich
Lets us down in time of need
Won't do "My Corona"

I gave two very important talks this week.

The first was on Wednesday, right before I ran for the plane to DC. I teach at a Catholic school, but on Wednesdays at noon we have programming for Protestant students, called "Manna." I really like speaking at Manna, because it is a great way to have a spiritual experience with my students. This Wednesday, I planned to give a very personal and somewhat vulnerable talk about transitions in life. I prepped, gathered my things, and headed for the room.

When I opened the door, I found that there were only four students there. There usually is a much bigger crowd, and I'm not sure what kept the numbers down.

But I did know that it was an opportunity. I love a small audience; you can make eye contact with everyone, read the room, see how they are reacting or feeling. I stepped up a few stairs in the auditorium to be closer to them, so that we were within a few yards of one another. Then I told my story.  I think it was one of the most impactful presentations I have ever given.

There weren't hundreds of people there to hear it. But there were those four, and that means the world. If just one of them, in twenty years, remembers what I said, then it will be worth all that I do.

Then I went to DC, to face another small audience, a subcommittee of the House Judiciary Committee. The hearing room for the House Judiciary Committee is remarkable, was been the site of Robert Mueller's testimony last year. Before that, it was the room where President Ford appeared to defend his pardon of Richard Nixon, and where Nixon's impeachment proceedings took place.

Me and the other three witnesses (Rachel Barkow, Cynthia Roseberry, and Kemba Smith) would have a small audience: the 14 members of that committee, plus the Chair of the Judiciary Committee, Jerry Nadler.

And again, a small audience was good. We could see who was interested and who was not, who wanted to speak and was waiting it out a bit. The hearing went over three hours (with a break for a vote on the floor of the House), so there was a lot to observe.

We fool ourselves when we think that we need a crowd to make change. Sometimes it is in ones and twos, small groups, when you can see formation of thought and emotion.

I was really intrigued by Zachary Wolf's analysis over at CNN comparing the situation now to the presidential race of 1912, when the incumbent, Taft, faced a primary challenge from former president Teddy Roosevelt. Roosevelt lost the nomination at the Republican convention, formed the "Bull Moose" party, ran as an independent, and then both Taft and Roosevelt lost to Woodrow Wilson, the Democrat.

It's not quite the same as now, of course-- for one thing, the incumbent hasn't been challenged for the nomination, and Bernie Sanders is not TR-- but it is sometimes good to remember that this isn't the first time things have been a little crazy.

It was quite a morning (and into the afternoon) testifying in front of the House Judiciary Committee. I think it went pretty well. I was the one witness called by the Republicans, but the three Democratic witnesses were all people I know and respect, including my longtime co-author on clemency issues, Rachel Barkow.

At the start of the hearing, Rep. Nadler quoted something from my written testimony, attributed it to Alexander Hamilton, and then disagreed with it, which has to be a high point of my career in advocacy. And, yes, the musical "Osler!" would be super-boring. 

It evolved into a really good discussion that even veered briefly into Shakespeare (re his themes of mercy).  You can sense the partisan fighting that is endemic to the institution, but that really did not infect the interaction between the witnesses and the members of Congress. Sometimes, I get to hang around on this tiny island of bipartisanship, and that is a pretty awesome place to be.

I'm all in on clemency reform right now. There has been a lot going on at the state level, and we are hoping things might get moving at the federal level as well. I had a piece yesterday about it at The Hill-- you can read that here.

Also, on Thursday I'll be in DC to testify in front of the House Judiciary Committee's subcommittee on the Constitution, Civil Rights and Civil Liberties, which is having a hearing on clemency reform. I'm thrilled that they are going to pay attention to this issue.

The Democrats control the House, of course, and called the hearing. The way it works is that the Democrats get to choose three witnesses, and the Republicans one. I'm the person the Republicans picked, while the Democrats chose my longtime collaborator Rachel Barkow of NYU-- most of what we have each written in this area was co-authored, in fact. So... I guess this really is one area of strong bipartisan cooperation!

Meanwhile, I'm still digesting all the news on the election. My fav, Amy Klobuchar, is out. It makes me kind of sad. But there is a lot left to happen....