President Obama has nominated Goodwin Liu, an Associate Dean and Professor of Law at UC Berkeley School of Law, to serve on the 9th Circuit Court of Appeals. Opponents have seized upon comments Liu made during a panel discussion on May 6, 2008 following a screening of Traces of the Trade at the Newseum in Washington, DC that was sponsored by the Council on Foundations (I wrote about the event here).
The distinguished panel was moderated by Harvard Law Professor Charles Ogletree and PBS Senior Correspondent Judy Woodruff. Panelists discussed the major themes in the film and how they connect to the world of philanthropy; how foundations can effectively facilitate discussions on race, the legacy of slavery, and the need for healing. When government lacks the capacity–or will–to lead the way in creating a more just world, how can we best encourage grass roots leadership in undoing racism and other forms of oppression.
Goodwin Liu’s comments were right in line with these themes. Yet if you Google "Goodwin Liu, Traces of the Trade" you'll find several links to a YouTube video clip, just over 2 minutes in length, titled "Obama Appeals Court Nominee – Goodwin Liu – on Reparations for Slavery." You’ll find an article by Ed Whelan, prominent conservative legal analyst and blogger, in which he claims Liu "... would make those who were not complicit in slavery pay the price of his grandiose reparations project." You’ll find many other bloggers chiming in.
But if you watch the entire discussion (which you can download here) you’ll find that what Liu was advocating in saying that each of us has a moral duty to make things right is that,
...instead of looking for the single national strategy, which is what everybody always looks for, think about what you can do on a much smaller scale in much smaller communities, around specific problems that people face, whether it’s in their schools, in their workplaces, access to health care, in their housing; whatever it may be.
For far too long we have allowed extremists and the media to define "reparation" for historic slavery as that "single national strategy" in which people who never enslaved anyone pay the price for checks being written to people who were never themselves enslaved. Such a definition serves well those who rely on division and controversy to serve their own ends. But it isn't helpful to those who want to make a positive difference in the world.
The First Amendment's religion clauses raise a lot of hard questions about how much intermingling of church and state is constitutionally acceptable in our religiously diverse nation, but whether the Pledge of Allegiance is constitutional is not one of them. The Pledge, in its current form, in which children of impressionable age declare that they live in "one nation under God," clearly violates the First Amendment. The practice of leading kids in reciting the Pledge violates every one of the Supreme Court's tests for what passes constitutional muster: it endorses a specific and controversial religious viewpoint, coerces non-believing youngsters into declaring their belief in a single god, and undeniably has a religious purpose. When Congress added "under God" into the Pledge in 1954, it did so specifically to proclaim our superiority to those awful godless communists of the Soviet Union.
This is not to say, however, that those of us who believe in church-state separation or who are personally offended by the idea that our nation purportedly exists under the gaze of a single supreme being should be too upset by a recent 2-1 decision of a federal appellate court that the Pledge is constitutional. At least we can look forward to not watching an embarrassing replay of what happened the last time the appeals court heard the question, when nearly the entire House came onto the steps of the Capitol to hold hands and sing "God Bless America" in protest. We also likely don't have to worry that the Supreme Court, which last time around dismissed the case on procedural grounds not present here, will take the case and decide it in a principled fashion, thereby instigating a movement to amend the Constitution to declare us a Christian Nation.
The dissent in the case, penned by Stephen Reinhardt, the most minority-rights-friendly judge remaining on the federal bench, is a judicial masterpiece. In over 130 pages (the length of the opinion might explain why the court waited over two years since oral arguments took place to release the decision), Judge Reinhardt carefully tears apart all of the arguments advanced by the majority and then some. The opinion should be required reading for anyone who cares deeply about the Constitution and the protection it provides minorities in a diverse democracy.
By now I thought the shocked reactions to the Department of Justice's report on sexual abuse of juveniles in detention centers would've disappeared. But articles and editorials from across the country continue to appear as states grapple with shocking numbers that won't go away. Will all this worry and lament translate into change? Who knows?
The one thing I'm pretty sure won't change is America's fear of these new barbarians marauding our streets in hordes (except today we call them "gangs.") Because that fear seems ingrained in our culture, kids will continue to be shut away in the very horrible places we condemn.
But if you're going to continue putting kids in some kind of detention I have a solution: boot camp.
For several years during my ten year tenure teaching high school kids at a New York county jail I had the privilege (strange as that sounds) of teaching in a boot camp for teenagers serving county time.
When I was first approached about the assignment I turned it down.
They had the wrong guy. After all, I'd been a conscientious objector during Vietnam, and to this day am a staunch pacifist. The military approach to anything is not one I can, or will ever be able to endorse. Young guys? Put in a boot camp? To be screeched at? Humiliated? All in the name of "helping" them?
I wanted nothing to do with it.
Until I finally gave in and visited the boot camp on which county corrections would model theirs.
What I saw knocked the protest sign out of this old pacifist's fist.
We Americans don't know much about how our criminal justice system works. We have the basics down. "Commit the crime, do the time!" as the pop cliché has it.
If only it were that simple.
Most Americans know that if you get arrested and post bail you're released from custody while your case grinds through an overburdened court system.
That is, if you're lucky enough to be able to post bail-- which means you're white enough; rich enough; well connected enough. But if you can't get bail-- which means you're poor; probably a minority; you’ve burned bridges, are alone-- you go to jail. Even though you've not been judged guilty. Even though the state has yet to prove that you did the crime you're accused of. Even though you're innocent until proven otherwise. Still you stay locked up in jail, not some special holding place, until your trial. You live with convicted criminals in the same conditions that society has set up to punish (because that's what jails do) these wrongdoers.
That's the way it is for two-thirds of the people in U.S. jails according to a recent series on NPR; more than a half million inmates locked up because they can’t get the money to post bail.
"Zero tolerance." It sounds like a good idea: "Put your foot down." "Get tough." "We're not taking it anymore."
The American public, worried about the purported drug and gun wars being fought in our cities in the 1990s, grabbed onto this concept. In turn, a number of states and municipalities adopted "zero tolerance" laws.
Since then "zero tolerance" has pervaded our culture.
The numbers are disturbing. During 2008 through 2009, 12 percent or 3,220 of the kids locked up in state or privately run juvenile detention centers reported that they had been sexually victimized by another kid or by facility staff.
Even more disturbing is that 10.3 percent stated they had had sexual contact with an adult staff member. Of that number, 1,150 kids said that sex or sexual contact was forced on them. All this according to the recently released National Survey of Youth in Custody (NSYC) report mandated by the Department of Justice as part of the Prison Rape Elimination Act.
Statistics have an odd way of getting to us.
On one hand, they're just numbers; cut and dry; lifeless; boring to read; easy to lose track of. Yet they’re potent, almost like talismans that draw our attention to the truth beneath them.
(The ALI is a supposedly elite group comprised of around 4000 lawyers, judges, and academics. I say "supposedly" because I am a member, and so I think I can say that membership has a lot to do with whom you know. As a federal judge whose name I will not reveal once said, the major qualifications for getting appointed to the federal bench are: (i) having a law license, and (ii) being friends with your U.S. Senator (or being a friend of a friend). The same might be said for membership in the ALI. But I digress.)
Liptak points out that when the death penalty was reinstated by the U.S. Supreme Court in 1976, after a brief four-year hiatus, the framework shared by the death penalty laws that the Court upheld was created by the ALI. Essentially, this framework was designed to insure that the death penalty be reserved for the so-called worst of the worst.
Over time, a deep fissure developed in death penalty law. On the one hand, defendants facing the death penalty were allowed to place before the jury any and all so-called mitigating evidence -- that is, evidence that would warrant a life sentence, rather than a death sentence. On the other hand, juries could not be given too much discretion, because the consequences of too much discretion tend to be impermissible discrimination. So states had to channel the jury's discretion to try to wall off the factors juries were not supposed to take into account, while permitting them to take into account everything else.
In short, death penalty law had at its very heart a fundamental contradiction. Juries were to base their decision on personal characteristics of the defendant so as to identify the worst of the worst. Yet certain personal characteristics (like race and sexual orientation, for example) are irrelevant. Consequently, basing a decision on personal characteristics of the defendant is a recipe for all kinds of impermissible discrimination.
Second-parent adoption has proved a powerful legal device for gay and lesbian families. It is modeled on step-parent adoption, a statutory scheme that allows a biological (or adoptive) parent's spouse to adopt a child without terminating that parent’s rights, thereby leaving the child with two parents. However critical this method of securing the family’s legal protection remains-- and will remain for the foreseeable future-- there is a conceptual flaw in analogizing same-sex couples to a step-family.
A step-family forms after a child already exists. The child lives with one parent. That person marries or remarries. If the child has no second parent, the step-parent adoption is relatively simple. If there is a second parent, that person must consent to a termination of his parental rights, or the termination must be obtained through a judicial proceeding, and only then can the adoption take place.
A lesbian couple, on the other hand, plans for a child together. From before birth, the child-to-be has two parents. The nonbiological mother is not a step-parent. The closest analogy to her situation is that of an infertile husband whose wife, with his consent, conceives using donor semen. That husband does not have to adopt his child.
There are 109 inmates serving life sentences without parole for non-homicide crimes they committed when they were 18 or younger. Some, put behind bars when they were 13 or 14, have been locked up for twenty or thirty years.
Those 109-- minors then, adults now in their prime, or at least they should be, if they weren't facing a slow, cruel death in jail-- are a part of something that is uniquely American. According to Amnesty International, the United States is the only country that imprisons children for life (the same country, the PEW Charitable Trust reported in 2008, that now incarcerates one out of every one hundred of its citizens).
This year the United States Supreme Court has agreed to consider two of those 109 cases. One involves a man who, at the age of 13, robbed and raped an elderly woman in 1989; the other was 16 when he took part in two break-ins in 2005. Each was sentenced by a Florida court to life without parole. The high court must decide whether such life imprisonment is "cruel and unusual punishment."
There are over 50 groups filing in support of these two inmates. It's a roll call of religious, legal, correctional, educational, medical and psychological professionals. As varied as the groups are, there's not much difference in their reasoning. All the briefs, whether based on spiritual belief or scientific research, come down to the same thing, to something that seems obvious to me: children change, develop, are redeemable; children are vulnerable to immense forces in their lives, forces that they can't control but sometimes act out of.
It seems like a lot of effort for two people (or 109, depending upon how you look at it) who, when they were young, did some pretty terrible things. But those hundreds of professionals and concerned citizens know that if we don't stop it now, there'll be a lot more than 109 kids facing the same fate, given the country's mood when it comes to kids and crime. It is a mood that was set into motion in the mid-1990s when some political scientists warned the public of the impending threat of young "super-predators," and so the jihad on juvenile crime began.
Thanks to Nan Hunter for alerting me to the proposed regulations implementing my favorite family leave policy: the one that allows federal government employees to use their sick leave to care for "any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship." I've had numerous posts on this topic on my Beyond Straight and Gay Marriage blog . I love the current policy because it allows employees to define their own family members. Whenever advocates for marriage equality cite the unfairness of preventing one partner from caring for another who is ill, I always respond by arguing that the solution to that problem isn't marriage -- it's an employee leave policy like the federal government's! Such a policy encompasses same-sex couples but also ensures that unpartnered LGBT individuals, who may be estranged from or live far from their families of origin, can receive care from the people they consider members of their families of choice.
The proposed new regulations make clear that "domestic partners" are included. Appropriately, the definition of domestic partners requires commitment and some shared responsibility for each other's "common welfare and financial obligations," but it does not require living together. It also encompasses different sex couples. No couple must marry, or register with the state as domestic partners, or enter a civil union, to qualify for the leave. The proposed regs also make explicit that the child of a domestic partner is in the category of children one may use sick leave to care for, but, again, such children were always covered because the standard has always included (and continues to) all children to whom the employee stands "in loco parentis" (in other words, functions as a parent).
TIN and other groups like it have helped to overturn numerous death penalty convictions, but earlier this week, one of Dow's clients, Michael Richard, was executed when a judge refused to accept a last-minute appeal. Dow weighs in on this case, and about the Kentucky lethal injection challenge before the Supreme Court, which has prompted a virtual moratorium on lethal injection, in the Washington Post. While the judge in question, Sharon Keller, has rightly come under fire, Dow asserts that there is plenty of blame to go around.