Osler's Razor

In the first instance, he comes upon a woman being stoned to death for adultery-- the mandated punishment under mosaic law. He stops the people killing her, though, and in doing so tells them they don't have the moral authority to do that. And--  in a part of the story that often gets skipped-- he tells her "neither do I condemn you," before telling her to go and sin no more. He literally saves her from death, and then consoles her.

In encountering the woman at the well, Jesus breaks three Jewish customs: talking to a Samaritian, being alone with a woman, and drinking from her cup. He talks to her about water, and then reveals what he knows about her: that she had five husbands, and was now living with a man not her husband. But what happens next is surprising, perhaps-- instead of condemning her, he reveals himself as the Messiah! That's something he very rarely did; it was a remarkable moment of trust. He offered her a rare gift.

Think about that... in these two instances, Jesus not only allowed fellowship with people who were condemned by their society, but chose quite pointedly not to condemn them. In fact, he sought them out and spent time with them even when that put him at risk, and helped them in a way that had nothing to do with sexuality. 

One might call that love.

# posted by Mark Osler @ 1:00 AM 0 comments

 It's hard to disagree with this:

# posted by Mark Osler @ 1:00 AM 1 comments

The New York Times is featuring (along with the awesome photo above) an intriguing piece from Thomas Friedman titled Made in the USA: Socialism for the Rich. Capitalism for the Rest. 

Friedman notes that in the last three decades, the wealth of the top 10% in the US has tripled, while it has remained flat for the bottom 50%-- that is, the people most likely to rely on work rather than investments (including home ownership) for their accumulation of wealth.  Not unrelatedly, that top 10% owns 80% of the stocks.

In short, government policy has been geared to protecting the stock market from devaluation, while failing to protect the rest of the economy from job loss, wage stagnation, and other ills. And... the protection of markets rather than people has also driven up the national debt.

It's no coincidence that most of those who make decisions about these things are not only lifetime residents of that top 10%, but they overwhelmingly come from businesses that make their money off markets.

There is a deeper rot to all this, too. Consistently, American politicians say that they value work, and just as consistently reward ways of making money that involve little to know actual work. That's led us to some skewed values-- including the popularity of the super-rich that has risen to the level of seeing almost super-human powers in their wealth. 

I live mostly among the relatively affluent in America. And I know, very well, that they are not working harder than the people who make their food.

The truth is, there is more to admire in the man who walks high steel and builds a skyscraper than there is in the person who just makes money off ownership of that property-- but our built-in systems of reward run the opposite way. That's not just a societal problem, but a spiritual one. And it will catch up with us. 

# posted by Mark Osler @ 1:00 AM 4 comments

On Monday, something remarkable happened: Minnesota granted its first full pardon in over 35 years. And my clinic students made it possible! I couldn't be more proud.

To learn more, check out the following. We didn't seek out the press, but they seemed to love this story!:

From Fox9 here in MSP

In the Star Tribune

On KARE11 in MSP

In the St. Paul Pioneer Press

On CBS4

In the Grand Forks Herald

# posted by Mark Osler @ 1:00 AM 0 comments

Awesome haiku last week, everyone. But, it was quite a week, huh?

Resident king of haiku Gavin had this awesome entry:

Like a brand new love
After an abusive ex
It felt light, hopeful.

Desiree wrote what I was thinking:

Bernie and GaGa's  
fashion ruled, while Michelle's hair
flowed, loose and relaxed. 

Amy had a strong triplet:

Age and youth, deep blue
water, lights, breezy sun, masks
and poetry, lack

and field of flags, red
and yellow, purples and black,
anticipation, 

noon sign of relief.
Now we see calm Capitol
unmarked by unrest.

Jill Scoggins had a bunch- these two were my favorites:

He quoted Lincoln:
"My whole soul is in it." How
we believe you, Joe.

Amanda Gorman.
Youth, creativity, hope,
in the poet’s voice.

I knew that my dad couldn't stay away from this topic (and I'm glad he didn't):

The sun suddenly
burst on the stage revealing
truth and dignity.

And we can always count on the Medievalist:

Oh, the hills we climb,
The dark night of the soul, done,
Democracy again.

A highlight for me was CraigA's entry:

Lady’s love anthem 
Laureate’s angelic poem
Cowboy’s grace-filled song.

# posted by Mark Osler @ 1:00 AM 0 comments

It was a tough week for the institution of clemency. President Trump went out of office with a flurry of pardons (Lil' Wayne, Steve Bannon, etc.) for people who are rich, connected, and hadn't even been convicted yet. Meanwhile, the most deserving petitioners, mired in the muck of the DOJ-controlled clemency review process, never even got considered. Most of those who received clemency from Trump were rich and white, while many of those who never got a shot are poor and black.

It made me angry. 

And yet, to staunch my anger over this, I have to remember Matthew 20, where Jesus tells us a parable about vineyard workers:

“For the kingdom of heaven is like a landowner who went out early in the morning to hire laborers for his vineyard. ² After agreeing with the laborers for the usual daily wage,^[a] he sent them into his vineyard. ³ When he went out about nine o’clock, he saw others standing idle in the marketplace; ⁴ and he said to them, ‘You also go into the vineyard, and I will pay you whatever is right.’ So they went. ⁵ When he went out again about noon and about three o’clock, he did the same. ⁶ And about five o’clock he went out and found others standing around; and he said to them, ‘Why are you standing here idle all day?’ ⁷ They said to him, ‘Because no one has hired us.’ He said to them, ‘You also go into the vineyard.’ ⁸ When evening came, the owner of the vineyard said to his manager, ‘Call the laborers and give them their pay, beginning with the last and then going to the first.’ ⁹ When those hired about five o’clock came, each of them received the usual daily wage.^[b] 10 Now when the first came, they thought they would receive more; but each of them also received the usual daily wage.^[c] 11 And when they received it, they grumbled against the landowner, ¹² saying, ‘These last worked only one hour, and you have made them equal to us who have borne the burden of the day and the scorching heat.’ ¹³ But he replied to one of them, ‘Friend, I am doing you no wrong; did you not agree with me for the usual daily wage?^[d]14 Take what belongs to you and go; I choose to give to this last the same as I give to you. ¹⁵ Am I not allowed to do what I choose with what belongs to me? Or are you envious because I am generous?’^[e] 16 So the last will be first, and the first will be last.”^[f]

That does seem to cut against my resentments, doesn't it? It doesn't mean that I shouldn't seek mercy for those who Trump left behind-- just that I need to stop worrying about those who benefited unfairly.

# posted by Mark Osler @ 1:00 AM 1 comments

 There were a lot of great performances at the Inauguration. The Foo Fighters provided one of them:

# posted by Mark Osler @ 1:00 AM 1 comments

           Donald Trump’s presidency ended with a spasm of pardoning, a hot mess of screwed-up virtue signaling, rewarding of dark loyalties, and fealty to celebrity. Yes, some valid commutations of sentence were sprinkled in, but the process used was a bag of garbage—and I say that as someone who has consistently argued that even bad clemencies aren’t so bad. Trump’s misuse of a tool for mercy threatens to set back the work of clemency advocates for a generation.

            Trump’s focus on favoritism and slapdash process are a serious break from over two centuries of clemency practice, exceeding even the recklessness of Bill Clinton. Some might argue that the use of clemency in a rush at the end of a president’s term is normal, but even that is wrong. In reality, the “grand tradition” of presidents waiting until they are almost out the door to most actively use the pardon power only goes back to Bill Clinton in 2001 (and to a lesser degree, his predecessor, George H.W. Bush). Prior to that, presidents granted clemency much more evenly over their complete term in office. According to DOJ statistics, Ronald Reagan’s biggest years for clemency were his second and third (out of eight), and Jimmy Carter’s second year was his most prolific. 

            Trump’s process, too, was typical of him, but not of the presidency. Like his immediate predecessors, Trump faced a broken clemency review systemenmeshed within the Department of Justice and saddled with redundant layers of bureaucracy and multiple conflicts of interest. Advocates (including myself and NYU Prof. Rachel Barkow) urged Jared Kushner at a 2018 White House meeting to sweep this away and implement a bipartisan review board, but that idea was rejected. Instead, Trump installed an ad hoc group of informal advisors led by Kushner which included former Florida Attorney General Pam Biondi, former Acting Attorney General Matthew Whitaker, and clemency recipient Alice Marie Johnson. They fed names to the President for consideration, separate from the still-extant DOJ review process. While this committee did in a way accomplish a key reform—taking the process out of the Department of Justice, which is deeply conflicted as the body that sought convictions and sentences being reviewed—it presented new problems.

            For those of us who represent clemency petitioners pro bono, this new process was a frustration. There were no rules, no standards, and no observable procedure. Occasionally, a member of the Trump inner circle would reach out, invariably requesting a “one-page summary” of a case they were investigating. With that being the only hope, I gave them the summaries—well aware of the impossibility of distilling an 80-page petition meaningfully into a single page. 

            And then there is the plethora of grants to cronies, friends, and fellow travelers who committed the kind of crimes (fraud, false statements) that Trump himself may end up being accused of.  While Trump is not blazing new ground with this, he has perfected the art. This is also a trend that only extends back to Clinton and George H.W. Bush (and, arguably, the Gerald Ford pardon of his predecessor, Richard Nixon). Clinton tarnished his legacy with a pardon for Marc Rich, and Bush raised ethical questions by pardoning some of those involved in the Iran-Contra scandal (a mess that also may have involved Bush).  

            Much more significant historically has been the remarkable uses of clemency to forgive opponents of the president. Perhaps most famously, George Washington granted pardons to some of the leaders of the Whisky Rebellion—an uprising he personally led the militia out to combat. Warren Harding, a largely unremarkable president, made history by pardoning Eugene V. Debs, a socialist firebrand who ran for president against Harding from prison in 1920 and won 3.5% of the vote. Even more striking was the commutation of a death sentence Harry Truman granted to Oscar Collazo in 1952. Collazo’s crime was a nearly-successful assassination attempt on Truman himself. But mercy to opponents was never Trump’s style.

            Joe Biden inherits a crisis, with over 14,000 petitions moldering away within the forgotten formal process. Biden must create a better process, and embrace a truer vision of mercy.

# posted by Mark Osler @ 1:00 AM 4 comments

Some students just make your day (and your class) better. Kelly Geistler was one of those students. Typically, she described my look in the above photo with her as "just the right amount of crazy." 

Kelly had been through a bit of life before law school, starting with a college basketball career. She was one of those students who taught me as much as I taught her, and her understanding of substance abuse policy was something I relied on even after she graduated.

After law school, Kelly took a fascinating and relatively unconventional career path, working in various policy roles for the city of Minneapolis. At one point, she was coordinating the work of four committees and one commission-- and people who have worked in city government can understand what an accomplishment that is. In 2019, she took a job as the Deputy City Clerk in Rochester, Minnesota, and now is the Interim City Clerk there.

We make a big fuss over national politics, but the truth is that our local officials, and the choices they make, probably have a much more direct impact in our lives. We are all better off when people like Kelly are in that mix.

# posted by Mark Osler @ 1:00 AM 0 comments

On April 5, 1968 my wife and I woke up early to a near perfect day. Intense green grasses with limestone trout streams covered the rolling hills all around our motel. We were staying in a small town in Lancaster County, Pa. enjoying a brief spring break while the kids stayed in Pittsburgh with their aunt and uncle. Soft sunshine coming through mist greeted us when we pushed aside the motel curtain. We got some coffee and plenty of donuts from the office and sat on the beds in front of the TV. A solemn face told us that Martin Luther King Jr had been shot and had died in Memphis the night before.

# posted by Mark Osler @ 1:00 AM 0 comments

 I really recommend this piece by Jesse Wegman about King's successor in the pulpit, Raphael Warnock.

# posted by Mark Osler @ 10:00 AM 0 comments

Great snow haiku, everyone!

I loved this from MKS (and yes):

The moon on the breast
of the new fallen snow gave
luster of midday. 

(Haiku doesn't allow those last 5 syllables, but I know you are thinking them).

The Medievalist got a taste this week:

In Waco, Texas
It snowed big fat flakes Sunday,
Wonders never cease.

CraigA, I feel ya':

Climate change in VA:
My soul longs for deep
New England snow drifts.

Desiree, too-- I feel that:

Snowflakes sprinkle down,
distracting me from work and 
calling me outside.

DDR chimed in with a mystery:

One set of footprints
Appeared last night after ten
Maybe the Yeti?

And Christine got a little science-y:

In frosty air
Moisture converts, falling snow
Each crystal unique.

# posted by Mark Osler @ 1:00 AM 0 comments

 I was driving yesterday and was listening to a conservative Christian radio broadcaster-- just something that I happened upon as I flipped through the stations.

She was on a long soliloquy about the sad state Christians found themselves in at the moment, which is something that really could go either way. But then, the reveal: "In my lifetime, I don't think I have ever seen Christians so dispirited about the turn the world has taken, with this stolen election."

I hit the radio with the heel of my hand, which was a mistake in at least two ways. I was upset and disappointed at that message, that Trump's loss was somehow a blow to Christianity.

First, isn't God supposed to be bigger than politics?

Second, we are getting rid of a deeply troubled man who disrespects women, has paid off a porn star to keep quiet about an affair, defines himself through displays of wealth, and does not seem to have any history of churchgoing or even a passing familiarity with the elements of the faith. In place of him, we are getting a devout Catholic who attends church regularly, speaks knowledgeably about his faith, and does not seem in thrall to wealth and its accoutrements. That's gotta be good, right?

"But, abortion!" the conservatives will say. 

Somehow, for so many of our nation's Christians, that one issue--something that Jesus never discussed--takes precedence over consideration of all of the issues and values that Jesus did talk about: poverty, love of God and neighbor, humility, and sacrifice. Opposition to abortion may be a principled position (whether you agree with it or not), but it is not one that can reasonably be seen to supplant all the things that Christ actually told us to do and to respect-- few if any of which mark the life of Donald Trump.

I get that some people are despondent that Trump will no longer be president. That makes sense at some level. What doesn't make sense is that your Christian faith would lead you, somehow, to that despondence. 

Whatever it is that your own faith and vocation make you want to accomplish, you still can. A change in presidents does not change that. And if the new president changes your faith or hope for the world, your faith does not appear to have been so strong to begin with.

# posted by Mark Osler @ 1:00 AM 1 comments

 A:  Not necessarily!

        The idea-- often tossed around right now-- that accepting a pardon implies guilt does have some historical precedent. In the 1915 case of Burdick v. United States, the United States Supreme Court did say that accepting a pardon carries a confession of guilt. But more recently, the Court has cut the other way.

         In a deeply troubling 1993 opinion in a capital case, Herrera v. Collins, the Court held that a federal prisoner could not pursue a writ of habeas corpus solely on the basis of actual innocence. In the course of reaching that conclusion, the court noted that their bar to habeas did not mean, “however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency.” The Court then went on to assert that under British law, clemency “was the only means by which one could challenge his conviction on the ground of innocence,” and that “Our Constitution adopts the British model and gives to the President the ‘Power to grant Reprieves and Pardons for Offences against the United States.’” Their message was clear: at least in some cases, clemency is an allowable forum for innocence claims.

         Eugene Volokh has noted some other reasons to think that pardoning may be consistent with innocence: the federal statute that allows compensation for the wrongfully convicted allows pardon to be a basis for such a claim, and the DOJ’s own guidelines for clemency don’t create a bar but rather assert that “Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.”

      So can President Trump pardon himself while proclaiming innocence? Well, yes, all he has to do is sign a pardon warrant and bleat about being unfairly persecuted. But when the rubber hits the road-- which would come if he is ever charged in federal court and he raises the pardon as a defense-- the arguments above will come into play.

# posted by Mark Osler @ 1:00 AM 0 comments

 First of all, Megan Willome properly called me on an error in my post last Friday (Doh!) even while honoring the error with her syllable count:

You know everything is wrong
when haiku rules change
7-5-7, please no.

Gavin, as usual, got right to the heart of the matter:

My son and I watched
“Daddy, what are they doing?”
“I don’t think they know”

My dad gave us multiple stanzas:

Blacks who protest all
the killing will have massive
police resistance 

A white mob intent 
on sedition find themselves 
welcomed by allies

When will we all learn
when will we finally say
enough is enough.

And we heard from Christine:

January 6th
I so wish I was watching
Olympus has Fallen.

Jeff H. was here, too, with an adept observation:

Do lives matter if
They don't seem much like the cast
Of Duck Dynasty?

And Desiree gave us the perspective from suburban Virginia:

Terrorists escape 
DC and head to my town. 
They weren't welcomed here.

# posted by Mark Osler @ 1:00 AM 0 comments

 Son House, born in Clarksdale MS in 1902. His early work was recorded by Alan Lomax, forgotten, then re-discovered in the 1960's. He died in 1988.

# posted by Mark Osler @ 1:00 AM 0 comments

Venezuela expresses its concern over the acts of violence that are taking place in the city of Washington, USA; condemns political polarization and aspires that the American people can blaze a new path toward stability and social justice

That's not something I expected to see this week, or ever. Or the headline "Police re-take U.S. Capitol building." But here we are. 

It's hard to imagine the things that happened yesterday in Washington, DC. I was at work waiting for a call to start, so I watched part of the President's rambling speech, which combined long periods of boredom (lots of made-up statistics about the election, such as "250,000 more people voted in Pennsylvania than are eligible to vote") with incitement of his hopped-up fans to further action. The speech included this directive:

"And after this, we're going to walk down there, and I'll be there with you, we're going to walk down ... to the Capitol and we are going to cheer on our brave senators and congressmen and women," Trump told the crowd. "And we're probably not going to be cheering so much for some of them. Because you'll never take back our country with weakness. You have to show strength and you have to be strong."

Of course, Trump did not walk with them down to the Capitol (maybe he would have taken a golf cart if one had been provided) and instead went home to watch TV and fume about Mike Pence, who didn't subvert the election for him. 

Much of the crowd, however, did head to the Capitol-- and then stormed it and created violence and mayhem. One woman was shot dead and over 50 police officers were hurt.

Here is the takeaway: There was serious violence, incited by the President and intended to impede the transfer of power. We can no longer talk about an unbroken legacy of the "peaceful transfer of power"-- because there was violence this time. Yesterday. In the Capitol of the United States. As votes were being certified. 

Anyhoo... two other things happened yesterday that normally would be really significant (and still are, but just got buried in the news cycle).

First, President-elect Biden (remember him?) named Merrick Garland as his Attorney General, Lisa Monaco as the Deputy Attorney General, and Vanita Gupta as the Associate Attorney General (or #3 in the DOJ-- a fascinating job whose previous holders have included Rudy Giuliani, Frank Keating, Web Hubbell, and Tony West). For my work, Monaco and Gupta may be the more important nominees. Monaco is a former Obama-era Homeland Security Advisor who has more recently been working at NYU with Rachel Barkow, Anne Milgram, Bryan Stevenson and other good influences, while Gupta has been a leader in reform circles for years. 

Second, the Georgia senate races were called for the Democrats, Jon Ossoff and Rev. Raphael Warnock. That's huge, of course-- now the Democrats will control the House, the Senate, and the Presidency. 

There is something else there, too.

Raphael Warnock, the pastor at Ebenezer Baptist Church in Atlanta, is someone who talks about faith all the time, whether you want him to or not. His Christian identity is right up front. In him, there is a chance to shift from Jerry Falwell, Jr. and his ilk being considered the only thing you find at the intersection of politics and Christianity-- and that will be good for us all.

# posted by Mark Osler @ 1:00 AM 4 comments

Yesterday, Judge Boasberg ruled in Wisconsin Voter's Alliance v. Pence, a frivolous lawsuit in which Trump supporters sought to, well... here is how Judge Boasberg aptly described it:

And that's just the first paragraph of the opinion, which you can read in full here.  It didn't take him long to get to the point:

He doesn't stop there, either-- after dispatching the plaintiff's case on jurisdictional grounds, he launches into the substance, in a way that even my non-lawyer friends can understand:

For what it is worth, I love this kind of clarity from the bench. So far, though, Judge Boasberg is traveling ground many other courts have already trod in rejecting almost every suit filed by the Trump lawyers. But at the end, we find something new-- a well-deserved threat of sanctions for this terrible lawyering, something that would happen in regular course to others who repeatedly filed frivolous litigation but to which the Trump lawyers have somehow been immune:

# posted by Mark Osler @ 1:00 AM 5 comments

 If you haven't seen this, you should now:

# posted by Mark Osler @ 1:00 AM 0 comments

 So, yeah, I loved my dad's (maybe my mom's) haiku for the new year:

A hope filled new year 
365 days 
less the first twenty

Year 2020 
was spent in retreat and fear
our eyes were opened 

We will push refresh
button stored up ideas
will come pouring out. 

We also had this uplift from Desiree:

New year, new journeys!
So much to explore this year,
places near and far.

And from Ann:

Oh 2021
One day at a time ahead
Again and again.

Incoming from Louisville, via Jill Scoggins:

We eat for good luck
as if black-eyes, greens, cornbread
could bring the magic.

And, to round things out, this was the Medievalist's:

Jan 1 a new year,
We survived last year,
Let us live the new.

# posted by Mark Osler @ 1:00 AM 0 comments