One of the things I really love about Minnesota is the sharp edges to the season-- when winter has begun, you know it, and when fall is in full force, you can't miss the signs.
This is the time that summer ends. I've had a great summer, but I am ready to jump through that door before it slams shut; I want to wear a sweater and buy pumpkins and see the leaves. It makes me happy in a way that doesn't make sense, really.
Perhaps we have that instinct within us. As a newer Episcopalian, I am becoming more aware of the liturgical seasons,which shape the actions of the church. I like that rhythm and flow. I t doesn't match up completely with the liturgical season of my own heart, though, which are bent by a strong pagan-like impulse to celebrate the harvest, the big moon, or the longest day.
Fall has always been the most powerful and deepest of seasons to me. Now it is nearly here.
My dad has had various theories about that over the years, so I have given it some thought. My favorite definition was found in a Guindon cartoon, which showed a guy with a bad clown painting. The painter says "It's art. I used art supplies."
Let's haiku on that this week, or art in general if you prefer.
Here, I will go first:
Just some junk I found
In a clearing by the house
In just the right light….
Now it is your turn! Just use the 5/7/5 formula for syllables, and have some fun!
Political Mayhem Thursday: How to Control Opioids?
On Tuesday of this week, I was honored to moderate a panel of prominent doctors at this conference on opioid abuse. There were a lot of famous politicians as speakers-- Sen. Amy Klobuchar, Sen. Al Franken, Mary Bono, Gov. Dayton, etc.-- but I was most fascinated by what the real-world doctors and patients had to say. Uniformly, they described a broken system that has created disasters for too many patients who become addicts.
There is one insight that has really stuck with me. One of the doctors on my panel, Robert Levy, is a teacher at the University of Minnesota medical school and a family practice specialist. When I asked him what the dynamic behind over-prescription was, part of his answer was this: It is easy to say yes (to a patient who wants opioids) and hard to say no. If a doctor isn't going to give the patient oxycontin or percocet, that will be a long discussion… but if they say yes, it will be a short one. In an environment where doctors are evaluated based on how many patients they see, that dynamic is very powerful.
What should we be doing to control opioids? Or should we even try?
I have had a pretty busy summer (for an academic, anyways)-- I went to China, finished writing a book, and put together the Clemency Resource Center. And now it is time to start a new school year!
Yesterday, something unusual happened, too. A popular media source, Business Insider, picked up the idea Thea Johnson and I advanced in a recent article, calling it "a remarkably good case." That's kind of rare for an academic paper.
Today, I am moderating a panel at a fascinating conference on opioid abuse sponsored by the US Attorney (Andy Lugar) and Governor Dayton. You can see the full agenda here. My panel is composed of doctors with a special knowledge of the problem-- and good ideas for solutions. I'm very glad for this approach, since I would much rather see treatment, administrative or business solutions to narcotics problems rather than relying on an imprisonment approach. The biggest success of the War on Drugs-- the elimination of small-time meth production through the administrative measure of restricting pseudoephedrine sales-- was achieved without incarcerating anyone. What if we had taken such a problem-solving approach to crack, as opposed to the mass incarceration method?
Over the years, I have made a lot of suggestions about drug laws, but I think the best one of them is laid out in this new article: Why Not Treat Drug Crimes as Business Crimes?, which was written with Stanford's Thea Johnson.
The idea is simple: combine the federal guideline for financial crimes (2B1.1) with the guideline for drug crimes (2D1.1), and make the primary determinant of the sentence the amount of profit the person took. This would accomplish several things:
-- It would recognize that drug crimes are crimes of commerce, and that the direct and indirect harms of both are similar.
-- It would probably simultaneously increase sentences for the most culpable white-collar offenders and decrease sentences for the least culpable drug defendants (while maintaining long sentences for the most culpable drug defendants).
-- It would correct racial disparities among federal prison populations, as fewer black low-level defendants would be incarcerated.
-- It would also yoke together the interests of two different types of offenders, across racial and economic lines.
It is the last of these that strikes me as strong and true-- and I love the idea of the drug kingpin and the corporate kingpin sharing the same fate….
Political Mayhem Thursday: Why not treat drug crimes as business crimes?
As many of you know, I care deeply about narcotics law. In short, I want to find a way to reduce incarceration while doing what we can to keep illegal drug prices high-- that being the only thing that effective drug interdiction can really achieve. I've written about this in a number of places in the past year or so, including the Stanford Journal of Criminal Law and Policy and the Harvard Journal on Legislation.
Yesterday, I posted a new piece co-authored by Thea Johnson, who is Grey Fellow at Stanford Law School. It is the lead article in the upcoming issue of Wayne State's law review, and you can download it here. In short, we argue that drug crimes should be treated like other business crimes, using the same tools, because drug crimes are business crimes. Our efforts to categorize narcotics as some kind of super-crime has failed, resulting mostly in bulging prisons.
If you read it (and I hope you will), I'm interested in your thoughts...
I was fascinated by this chart, listing the top 25 schools by football player arrests over the last five years. Let's break it down by conference:
Big 12: 5
Big 10: 3
Coincidence, or not, that this is pretty perfectly in line with on-field success by conference over that same time period?
Baylor doesn't appear on the list-- but that does not mean it doesn't have issues. In today's Waco paper, for example, is the story of a Baylor football player currently on trial for rape of a freshman student. Troublingly, he transferred from Boise State after being thrown out there for violation of unspecified team rules-- and also after being named a Freshman All-American on the field.
I was talking yesterday to a friend whose political opinions I very much respect. He's a Republican, so we often have different perspectives, but was we talked about the presidential race we seemed to agree on a lot of things.
One of them was the shared perception that the two candidates many people believe will be the ultimate nominees-- Hillary Clinton and Jeb Bush-- share the same challenge: People (other than those with a personal interest in their campaigns) aren't very excited about either one. That should be important, since our leaders should inspire us.
Let's take a look at that. Clearly, there are two candidates that are generating real excitement among a significant part of their party's membership:
Others have fervent followers in a smaller segment of the party:
So, yesterday (as pictured above) I went to the Twins game with IPLawGuy. We're not crooks, though (well, not anymore, and that one incident was really caused by Fat Kenny and a catalytic converter). That's just the haiku topic we are reviewing today.
Good work, Medievalist!
"I am not a crook." But no one believed it, Tricky Dick got caught.
Also, Anonymous seems a little bitter, but I love the word "unrepentant":
Hippity hop hop Unrepentant cottontails Steal summer bounty
Sunday Reflection: Sentencing and Grief and an Oculus of Hope
Today's Washington Post has a great story about my client, Weldon Angelos, complete with a video and photo gallery. It was written by Sari Horwitz, a three-time Pulitzer Prize winner, and she writes compellingly about his case, his situation, and some of those who have come to his aid.
I urge you to watch the video attached to the story (which is un-linkable). It lays out the cost of sentences like the one given to Weldon, who got 55 years for a first offense-- selling about $1,000 of marijuana and possessing guns while doing so (though the guns were not used or brandished). The cost is exacted not only from the offender, but from all those around him, particularly his children. Watch to the end of the video… this project matters.
One of the deep tragedies of this is something that I have a unique understanding of, since I was a prosecutor. In that job, sometimes there are people who just piss you off. They won't do what you want-- like provide information on others or plead guilty-- and won't heed your threats. There is a gut feeling that tells you to grind them into the ground. It's that feeling, combined with laws that let such a base, mercurial instinct lead to action, that concocts these tragedies. It is a few minutes of anger in one person's head, a toxic brew of pride and anger and self-importance. And yes, at times that was me, too.
In the end, faith led me to something else. That is clemency, a simple, gentle machine of mercy and justice. I work to make it function again, in league with many others who are better and smarter and more competent than I am.
Sometimes, I do that work in shadow, and that is ok. The Post article, for example, talks about the Koch Brothers and their counsel, but doesn't mention the work my students and I did on this case over the course of years. And that is ok-- in fact, it reinforces something I talk about the first day of Criminal Law class. In that first session, I use art to illustrate my points, and one of them is Degas' "At the Millner," which looks like this:
It is a fascinating painting. The customer, in the foreground, is happily trying on a hat, smiling. She is the one who will wear it to a society function, get compliments, and enjoy the reaction it gets. Her face is well-defined, and her hands are prominent and well-describes by Degas' elegant strokes.
In the background is the milliner; this is the person who actually made the hat the customer loves so much. She is in shadow, though. Her eyes do not even make it into the painting, and her features are unformed. Her hands are formless and hidden behind two other hats being proffered.
My point to the students is this: As attorneys we are servants; we are the milliner, not the customer. We should be content to be in shadow if justice is done, if our client is radiant with freedom, or if our advocacy has made something better. Humility is not only a Christian value, but it is a job skill, if we are to be true to our calling.
Weldon Angelos is more important than I am, and more important than the Kochs, too.
When he is free, I will rejoice from afar. There are some things that are even better than a well-made hat.
I was walking through Brooklyn and was stopped cold by the most beautiful store I had ever seen. It was a bike store, selling VanMoof commuter bikes from the Netherlands.
Holland is a place that believes in bikes-- after all, they have an entire town with no cars. But these bikes were just gorgeous: simple, spare, practical, and sleek. I have never seen one on the road, but I am going to start looking….
Man, does anyone know what Hillary Clinton has been up to? Because if she has done or said anything, I sure haven't heard about it. The tumult of the Republican primary has taken over the media. I know some think this is a disaster, but really it is great to see the debate even if it is driven by the Trump candidacy.
Voter anxiety runs broad and deep, and, unlike in past eras of populist
unrest, people are radically connected via the Internet—their anger
magnified and easily exploited by agents of change. Forces that
disrupted the music, retail, financial, and media industries will
eventually bring radical change to politics. It's only a matter of time
and a question of outcome: Will that change be a force for good or a
force for bad?
It’s been lively
since last week’s Republican presidential debate. The dust-up between
Fox News’ debate panelist and pundit Megyn Kelly over her questioning of
anti-establishment candidate Donald Trump, followed by comments by
Trump that some interpreted as referring to her menstrual cycle, were
good enough for Erick Erickson, leader of the annual, decidedly
right-wing Red State Gathering in Atlanta, to disinvite Trump and
instead invite Kelly in his place. Few expected what happened next:
Conservatives rallied around Trump and vehemently condemned both
Erickson and Kelly. Here’s a sampling of the hundreds of angry Facebook
posts from the Red State’s own page. For the record, we found very few
rising to the defense of Kelly and Erickson:
Eve Grossi: Whether
anyone is a fan of Trump, one must admit Megyn Kelly had a personal
agenda that night. It was to make Trump fall.
Kevin Carr: So much for Fox being fair and
balanced! The moderators had an agenda! Trump will probably go third
party now and so will I. Trump for POTUS!
Yesterday I mentioned that Republicans, in an effort to get a majority, often managed to get working class people to vote against their economic interests. I suppose that is a statement that needs some unpacking.
Generally, Republicans in the past three decades have favored reducing taxes on the rich and decreasing services to the poor and the working class. That is an economic plan that has been held out as ultimately "lifting all boats," but did not work out that way, as income disparity has increased during that same time period, and states like Kansas which have followed that plan most closely have run into trouble. Craig Anderson (represented here by Nutzy the Flying Squirrel) sent me a link to his local Richmond paper, which featured a provocative analogous situation.
Here is the thing I don't understand:
1) Republicans often emphasize that the United States was founded on Christian principles, and that the government should continue to be informed by those principles and act on them.
2) Christ was clear about this: Feed the hungry. Cloth the naked. Care for those in prison. Help the poor and those in need. There is no clearer "Christian principle."
So… why don't those two beliefs combine to create an imperative that the government act according to Christ's directive and help the poor and those in need?
Or, for that matter, why don't Christian Democrats see and act on this?
Yeah, I'm kind of obsessed. And I'm not even a Republican. Here are some thoughts:
-- Trump was fascinating and awful. He was confronted with terrible things he had said about women, and then responded by insulting Rosie O'Donnell and attacking "political correctness." And it worked, because many in the audience think as he does.
-- The Huckabee seemed to want to one-up Trump, so he suggested that we solve the Social Security problem by taxing pimps. Which is certainly a horrifying approach to human trafficking.
-- Rand Paul was exactly right in responding to Chris Christie (who was trying to claim that mass data collection is constitutional). It was a fascinating dialogue that could have used a little slowing down.
-- Scott Walker seems shallow and soft. That won't work for long.
-- There seems to be a mini-playoff between Cruz and Rubio, and Rubio is winning. They told similar origin stories.
-- Yes, Fox News did ask tough (but predictable) questions. Everyone was asked the hardest question imaginable... but they should have imagined it as they prepared. I hope the Democratic debate sees a similar approach.
-- It is now pretty clear what is going on with Trump's appeal: He is tapping right into all the anger that the Republican party has created over the past two decades by fear-mongering and vilification of government, a tactic pursued to get working-class people to vote against their own financial interests. They got people mad, and now they are, well, mad. And someone they don't like has figured out how to tap into it. There is a Democratic analogue, too-- Democrats have over-promised what government can do, and now many in their base are upset that they have under-delivered.
I don't think Donald Trump will be the President. But I also think he will gain in popularity after the debate tonight.
Many people think that the televised debates will be Trump's downfall, of course-- that he will crack and say something stupid and then people will flee from him in droves. They forget two things.
First, Trump can say dumb things, unpopular things, and not have it hurt him much. We learned that when he said the dumbest thing imaginable about John McCain. His appeal to a segment of the population is that he is willing to be mad about stuff without being specific, or fussing too much about policy or niceties.
Second, and more importantly, people forget that Donald Trump will be the person on that stage with the greatest mastery of the medium of television. In a distant second is Mike Huckabee, who was a Fox News personality for several years-- but never gained the audience and popularity that Trump's show ("The Apprentice") attained. He is the only person in the Republican field with a catchphrase… a catchphrase ("You're fired!") that fits right in with anger at government.
Trump's personality is suited for television. More subtle is the fact that his skill set is well suited to a debate involving several opponents. Sure, some people will take shots at him, but he is the center square and will get his chance. He has a gift some might not perceive clearly, which is timing and patience. Watch the clip above, for example. He calls in four failed "apprentices," but he does not lambast them right away. He lets them seethe and attack one another and him, and waits. His tone, even in delivering insults, is measured. He is a master of that medium.
Trump's time for a comedown will not come tonight, and it won't come because Republicans turn against him en masse because of some epiphany about his beliefs or policy. Instead, he will be worn down by the institutional politics of the Republican Party, which consistently delivers mushy and flip-flopping moderates like George W. Bush and Mitt Romney. Money and time and a thousand short swords will do their work well before the first primary occurs.
But, tonight will not be the Trump meltdown some expect or hope for.
Hey, I am back from the wilderness! It was another great week up at the Island, but now it is back to business.
As you may know, the first big televised presidential debate is tomorrow, in Cleveland. To prime the pump a little, Rachel Barkow and I placed a piece in last Sunday's Cleveland Plain Dealer, titled Let's Hear From the Presidential Candidates on Clemency Reform. I like having the piece in that paper in that place right before this debate.
I was also very glad to see that John Kasich of Ohio made the field for the debate (as only the top ten candidates get to take the stage). I think he adds a very interesting perspective to the mix.