Rants, mumbling, repressed memories, recipes, and haiku from a professor at the University of St. Thomas Law School.
Thursday, September 30, 2021
Spaghetti Mayhem Thursday: Eminem Opens a Food Window
According to the the Detroit Free Press (which, when I was a kid, I thought was actually free, but it turned out my parents paid for a subscription), Eminem has opened a joint called "Mom's Spaghetti" in downtown Detroit. It sounds like it is pretty much just a food window where you can buy to-go spaghetti. Which isn't the worst idea I've heard lately, but I kinda wonder if it is what the world needs most right now.
The gimmick is that the name and theme of the place is a play on an Eminem lyric in Lose Yourself (a song I love). But... in the song the spaghetti gets thrown up, so maybe that's not the image to go for in food service.
Anyways, I thought about several other subjects for today, but I find the news just wearying. Things like record COVID deaths in Waco-- eight months after vaccines became available-- don't even seem shocking anymore; they are just like dull thuds to the head of a boxer who has already been knocked out.
There is a piece in the NY Times about how young people are watching the Sopranos, suggesting that they see it "as a parable about a country in terminal decline." And yes, I get that: The obsession with and unthinking fealty to a leader; a gun in every hand; the twisting of morality to somehow fit whatever greed demands; the problem of people who don't seem to realize that the world has profoundly changed; the embrace and celebration of principles like loyalty no matter if what they are loyal to is good or bad; the constant denial of the thing that is most true ("there is no cosa nostra"/"there is no global warming"); the service of the church to things opposed to human flourishing; the decay of people in roles that turn them to do what is wrong; the unfailing way in which those who want the most win out over those who love the most; the sad echoes of our grandparent's tragedies; the futility of law enforcement that just never gets around to making things better; the victory of time over strength.
Among the winners of MacArthur grants this year is Reginald Dwayne Betts, the poet and lawyer I first met nearly ten years ago. I've written about him on the Razor several times: in 2015, in 2016 (when I got him to speak at St. Thomas), in 2017, and in 2019 (when he gave me a poem to use in my casebook). I won't repeat all those stories here, but there are projects yet to come.
It's a very well-deserved honor; I found the other recipients fascinating, too. Over the years this has gone to truly remarkable people and I am glad to see they are widening their lens to include some that would have escaped notice in the past.
Overall, the rate of major crimes being committed went down last year compared to 2019. Good news!
Of course, that's not the whole story. The rate of the most serious crimes, manslaughter and murder, were way up nationally, by nearly 30%-- and 77% of homicides involved a gun. That's a terrible trend, and one that needs to be addressed.
The problem is, how do we address it? The first step is to understand what caused the big increase, and everything I am hearing sure sounds like guessing. Some claim that it is because the police were "defunded," but that's nonsense-- police budgets went up overall, and any decreases after the killing of George Floyd would not have taken significant effect in the calendar year 2020 (even if they existed).
I worry that instead of figuring out what is causing this and then addressing it, we will jump right to the same problematic solutions as in the past: mandatory minimum sentences, more stop and frisk, etc. etc. etc. That's a waste of money and humanity.
Certainly, there was instability in 2020-- in the economy, in our politics, in the daily rhythms of our lives. As things stabilize, one would hope that violence decreases.
And then there is the new availability of guns, after a record gun-buying spree during and just before the pandemic. More guns mean that more crimes that would have been assaults become murders, as more lethal weapons enter the equation.
It could be-- probably will be-- that violent crime goes back down after the pandemic. If it doesn't, there needs to be some serious study of causes before action is taken.
[The photo above is by Gordon Parks, taken in Chicago in 1957]
Throughout, one theme of the Bible is order and disorder. In the Old Testament, God repeatedly tries to bring order to the world, often through severe measures (ie, the flood). In the New Testament, Jesus brings disorder, in a way.
In a discussion with some great thinkers last week about this, we talked a little bit about art (which is always relevant to a discussion of principles-- after all, art deals with those principles in a nuanced and challenging manner when it is at its best).
We talked some about the work of Mark Rothko. To an untrained eye (like mine), this kind of abstract art seems disordered, almost random. But when I talk to someone like my dad, it becomes clear that the painting is deeply ordered at many levels: in the colors used and their inter-relation, in the shapes they form. In other words, something that seems to be disordered to us is actually ordered in the eye of its creator.
We blame disorder on God, but perhaps it is a failure of our lesser eye.
Yesterday I was back in Philly for the retirement of the judge I clerked for, Hon. Jan E. DuBois (ED Pa.). In the photo above we are recreating a scene from my clerkship, in which he reviews the sad state of my writing at the time.
He was one of my key mentors, and I had the opportunity to talk about that yesterday. By his actions, he taught me two key things: That law is important, and that it takes hard work to keep a society governed by laws together.
The first of those may seem obvious, but clearly there are many people in our society who do not think law is important-- that politics or economics subsumes the law in reality. But I disagree; the law does shape norms and behavior.
As for the hard work, I know that quite well.
I remember once going into the attic of an old house in New England, which was built in the late 1700's or early 1800's-- a time with the framers of the Constitution were alive. The owner of the house pointed out something amazing: That the timbers in the framing of the house were still fresh, even after centuries. That was true because of hard work-- maintaining the house to keep the timbers dry and the rot out.
And so it is with the integrity of the law. And it was Judge DuBois who convinced me of that.
People are having a LOT of fun feeding info about a character and story into a computer and then having a bot write a plot. It's just off enough that it is often hilarious. For example, the script below for a Batman movie. What do I love most? The birthday party scene? "You drink water, I drink anarchy?" The coupon for "new parents?" It's hard to say.
The New York Times has done a great job of covering the current border crisis, particularly the entry of Haitians in and around Del Rio, Texas. It's a perplexing situation-- we don't expect people from a Caribbean island to be sneaking into the US over the Rio Grande. But there they are. And it seems that we aren't handling it very well.
I used to go to Del Rio fairly regularly, to train the defense bar there on changes to the federal sentencing guidelines (this was back when there actually were changes to the sentencing guidelines-- we haven't had a functioning US Sentencing Commission since 2018 because of lack of a quorum). I would drive from Waco down to to San Antonio and then out into the empty spaces. I loved the drive, actually-- it was such a different part of the world than I had ever seen, endless scrublands with tiny, gray and brown towns here and there.
Del Rio was fascinating to me. It is a small city, with a population of about 35,000. A lot of the economy comes from two federal facilities: the courthouse and a big air base (Laughlin) outside of town. I tried to spend the night there, and usually would walk over the bridge (it is not a very big bridge) over into Mexico for dinner with some of the local defense bar. To me, that was unbelievably exotic-- to walk over a little river into a dusty Mexican town with a bunch of wickedly smart people who spoke Spanish and seemed to fit right in (I did not). I did not like the justice that was meted out in the courthouse, though. It seemed geared towards high volumes rather than due process, and I often saw lawyers representing people in groups of twelve or more.
I was a stranger in a strange land, but one with a car and relative wealth and American citizenship. I can't imagine what it is like to have none of those things, hiding under that bridge, hoping not to be sent back to a place devastated by political tumult, an earthquake and a hurricane. But there they are.
When I was in law school, my small-group professor was former US Solicitor General Drew Days. He knew something about winning and losing in court. I remember him once saying "Sometimes you win when you are wrong, and lose when you are right."
That's probably true. But I'm still feeling down that we lost the Shefa case in the MN Supreme Court this week. I think we were right, and I think it is important. I also know that the cost of my hurt feelings is nothing compared to the cost to Ms. Shefa, who may well be killed when she is deported to Ethiopia. (She was convicted of killing her husband after an incident of violence after years of abuse, and his family has threatened exactly that).
I'm sad we have not moved the needle on federal clemency, either-- President Biden seems not to be very interested, and is keeping the decision process enmeshed in the DOJ, which is hopelessly conflicted. We have urged a change, over and over.
I suppose that part of the problem is that I keep seeking to have decision making bodies-- the MN Supreme Court (we asked them to give up their veto on clemency decisions via the Pardon Board membership of the Chief Justice) and the DOJ (which houses the Pardon Attorney)-- to give up their power. And that does not happen easily or often.
In these battles, the people who are against me are almost always Christian. Those who work with me to create a space for mercy and redemption usually are not. And that, as much as anything else, makes me sad.
Yesterday I was trying to identify some weeds in my yard (it turns out they are Spiny Sowthistle, pictured above). In so doing, I found a listing of Minnesota's Most Dangerous Weeds, and the names are just terrifying:
Winged Burning Bush
I suppose these are the villains of the plant world, so they deserve names like "Spurge" and "Loosestrife" and "Toadflax," but "Winged Burning Bush?" Does if fly around after you, engulfed in flames?
In fairness, I should note that some of the most noxious weeds have deceptively sweet names:
Asian Bush Honeysuckle
Tree of Heaven
So... what is your favorite weed? (I'm pretty sure Christine, for one, has an answer for this one, and Desiree, if she is around).
I know that some people are thinking: "Dawn? I'm not awake for that!" But I'll bet that at least once, everyone has been-- and that it was memorable. People who are up at dawn tend to appreciate it each day, and those who rarely see it usually have a pretty interesting reason for seeing it. So let's haiku about that this week.
Here, I will go first:
We have long dark nights,
Not always in winter. But
The light returns; morn.
Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!
Yesterday morning, I drove over to St. Paul (it's not too far) to hear the arguments in an unusual case before the state Supreme Court.
I had a special interest in the case. Several years ago, someone in my clinic asked why we didn't work on state clemencies. It was a good question- one reason was because I didn't know how clemency worked in the state, so I endeavored to find out. When I dug into it, I found a very strange process-- stranger than the federal system's. In Minnesota, clemency petitioners argue their case in person, usually without an attorney, directly to a Pardon Board that consists of the Governor, the Attorney General, and the Chief Justice of the Supreme Court. It is fantastically unproductive; states like South Dakota, South Carolina, and Alabama regularly grant far more pardons that we do, even when adjusted for our lower rate of crime and incarceration.
The scheme also seemed to violate the state constitution, which allows that the "Governor, in conjunction with the Board of Pardons," has the power to grant clemency. An old statute hobbled that construct by requiring unanimity on the board to grant a petition. Over and over, I saw good cases shot down by a 2-1 vote.
None of it worked. The legislature is almost immobilized by division, unfortunately, and almost never takes up substantive criminal justice reforms.
So... last year, the right case came up for a court challenge. Amreya Shefa is an Ethiopian immigrant who was in a terrible marriage. She was threatened by her husband with a knife, and was able to defend herself, killing him. She ended up (somehow) being convicted of manslaughter and sentenced to five years. As her term ended she sought clemency to avoid being deported to Ethiopia, where she feared (with good reason) that her husband's family would kill her.
Her petition failed on a 2-1 vote, with the Governor and AG voting for a grant, and the Chief Justice voting against. We got some excellent law firms to take up the case and challenge the constitutionality of the unanimity rule on behalf of Ms. Shefa. We won in the District Court, and the case was expedited to the State Supreme Court, where the Chief Justice recused herself since she is a party. The Governor switched sides, so it was the Governor and Shefa on the side of striking down the unanimity requirement, and the AG and Chief Justice on the other. As one might expect, it was a tense and fascinating morning in court!
You can read about the arguments here. I suspect an order will come first, and then an opinion-- let's all hope for the best!
As reported by the New York Times, Broadway shows started back up last night in earnest, as musicals like Hamilton, Wicked, and the Lion King re-took stages after a long hiatus.
Meanwhile, stands were packed for football games last Saturday and Sunday (not to mention Friday night high school games), and other enterprises are re-gaining their footing.
The problem is this: now is when people expected to the pandemic to fade, but that didn't actually happen. Things are pretty bad in many areas, actually, with some cities registering their worst numbers of the pandemic.
It seems that the attitude is "we can't keep stuff closed down forever." But this seems like a very odd moment to bust open the gates, doesn't it?
The goal of terrorists is to inspire fear. When I look back over the last 20 years, I am saddened by how much we have done to help them accomplish this goal.
The politics of fear are no secret: we are more likely to vote for people who will protect us from what we fear. That means that for some politicians, creating fear is the first step towards success-- provided they are able to promise protection from what we fear. Donald Trump created fear of immigrants (despite the fact that the crime rate by immigrants is lower than that for native-born Americans), and then promised a simple solution: "The Wall." Of course, over history, there are hundreds of uses of this by both parties-- many (perhaps most) of them related to race and ethnicity.
But there is something especially pernicious about the use of fear after and related to the 9/11 attacks. More than anything, it furthered the goals of the terrorists, and unsettled and diminished the lives of Americans. When we live in fear, we literally give up our freedoms: our freedom to travel, to love who we want, to pursue dreams. The terrorists succeeded in taking away our freedoms only because we finished the task for them, by conditioning the nation to live in fear of Muslims and foreigners, among other people and things.
It did not have to be that way.
When Jesus said "fear not," it was consistent with the rest of his message for love of our neighbors and the welcoming of foreigners. Had we kept true to that vision, the terrorists would have been thwarted.
Oregon is traveling to Ohio State today. And that brings together one of the best mascots (the Oregon Duck) and one of the worst (the Ohio State Buckeye-head-guy).
The Oregon Duck just has personality in a way that an anthromorphic nut cannot. Oddly, the Duck also looks exactly like Donald Duck, but there do not seem to be IP issues. Maybe IPLawGuy can advise on that one.
One of my local heroes is Ramsey County Attorney John Choi, who has brought a true progressive view to St. Paul. Yesterday, he announced a new policy: That his office will no longer prosecute cases that result from low-level traffic stops (ie, a broken taillight).
This might seem like no big deal, but it is a big deal. Pretext stops-- pulling over people who seem "suspicious" for minor issues in order to search their car-- is a major driver of racial disparities, since black and brown people are much more likely to seem "suspicious." Declining cases based on such stops removes the motive to make them in the first place.
To be sure, most such stops don't turn up evidence of a felony offense, anyways. I think this is a great development; the question will be how many others follow his lead.
For people who do what I do-- and in a lot of other fields-- the pandemic made us very familiar with online meetings and classes.
There were real costs to the replacement of in-person meetings with Zoom. It just does not offer the same level of connection, and networking isn't the same. Over the years, I met dozens of people who became friends, collaborators, and colleagues at in-person meetings. I can't say that I have met anyone new over Zoom who will play any of those work-related roles. Sure, Zoom did help me maintain the relationships I already had, and that's good-- but no substitute for developing new ones. I feel kind of stuck.
I also find that I am more awkward than usual in personal real-life encounters now... like I have gotten out of practice. Does anyone else feel that?
This weekend, something not-so-important (in the grand scheme of things) happened: College football started a normal season. Last year was a mess, and probably they should not have played at all.
For the same reason (covid), some of the images from this weekend's games were disturbing, as tens of thousands of mostly unmasked fans packed into stadiums. This wasn't universal (it appeared they managed to create some social distancing at Northwestern, for example, by continuing their long tradition of not having many fans), but many of the games could turn out to be superspreader events.
Plus, most of my favorite teams-- Wisconsin, Northwestern, and others-- lost, while a few other favorites edged out a win when they should have won easily.
I have mixed feelings about the return of my favorite sport, it seems...
Something interesting is happening: Even with high unemployment, there are many more jobs open than people seeking jobs.
Many people have concluded (correctly, I think) that many job seekers just don't want another lousy job with low pay, uneven hours, and boring or repetitive work. So unless employers raise pay (as many have), create stability in working conditions and a better working environment, they are going to have labor problems.
And, in a way, that is good: Employers SHOULD raise pay, create stability, and create better working conditions. It once was that unions pushed for those things, but they have been undermined in many places and industries. Now it appears there may be a movement outside of unions for those same things; rather than collective action, though, it is each individual for themselves.
Some employers, of course, believe they have a right to poorly-paid labor and are being cheated out of it somehow-- they go from blaming the workers ("lazy!") to incorrectly blaming government programs.
But... maybe this Labor Day, the value of labor is actually counting for something.
Texas has a special place in my heart. I loved living there and learned to teach there. And places like Bookpeople in Austin-- awesome.
But right now I'm so glad that I left. Texas seems consumed by toxic politics that cuts against my principles to the core. Restricting voting? They are leading the country. Self-inflicted Covid disaster? They are doing it. And I realize that people have different opinions on abortion, but deputizing citizens against one another is a terrible idea.
What bugs me most is this: So much of what is happening is just mean. It is designed to hurt people rather than help them. And that is so contrary to the central ethic of the faith so many people there embrace. How can they miss that?
As I watch from afar, I'm sad.
But I still love the place, and have my voice heard there. I have a piece in the Waco paper today (you can read it here) about principles, freedom, and vaccinations.
Something remarkable and awful happened on Wednesday in Waco: With over 500 new covid cases, it was the worst day for new infections in the entire pandemic for McLennan County. Of those new infections, over 200 were in people under the age of 20-- a shocking figure driven by school starting two weeks ago, in the absence of mask and vaccine mandates in some of the school systems. 191 patients were hospitalized for covid, representing a huge strain on the medical system there. The death toll in that not-so-large county is over 500.
How bad is it?
One middle school in the county had two teachers die of covid in the past few weeks. That prompted them to close the school, at least temporarily.
The absurd politicization of common sense public health measures is to blame for this disaster. McLennan County has a vaccination rate of only 45% of those over 12 who are eligible. This was avoidable. Selfishness made it inevitable.
Back in June, when I took this photo, I was feeling pretty good about things. I was fully vaccinated, the pandemic was fading, and it was ok to take a little road trip.
The end of summer has sapped my optimism. The paper brings such sadness: Afghanistan, Ida, the resurgence of the pandemic, wildfires at Lake Tahoe. I wish there was something to pin my hopes on within those pages. But maybe I need to look elsewhere.
I had my first class on Monday-- my 20th time teaching Criminal Practice. I wore a mask for the full two hours of lecturing, which is... hard.
But the students were right there with me, engaged and full of good questions. I felt the way I did in that first class two decades ago, realizing that the class is about the students, not the teacher, and how good that is when it works.