Month: August 2007

Politics, Supreme Court

Roberts the Elder

John Roberts has an understated personality, but his record will be all torpedo.

Published: September 13th, 2005

As John Roberts sits down before the Senate Judiciary Committee this week, its members will be searching to better understand the man who would become the 17th chief justice of the United States. If history is any guide, they will learn little about who John Roberts is and even less about who John Roberts will become. The problem with confirmation hearings is that, even with a forthcoming nominee, they offer only a snapshot of a jurist before he or sheenters the rarified and mind-altering world of the country’s highest court.
Senators have learned that a strange metamorphosis can occur in the walk over the east Capitol lawn to the Supreme Court building. In that short expanse, reliable conservatives have been known to transform into raging liberals, and vice versa.

Senators will, therefore, struggle with the need to know the unknowable: To paraphrase the Beatles, “Will you still need me, will you still please me, when you are 64?” Continue reading “Roberts the Elder” →

Columns, Congress, Constitutional Law, Justice

The Case for the Impeachment of Alberto Gonzales

Published August 2007 Roll Call

HEADLINE: The Case for the Impeachment of Alberto Gonzales

There is much about the current controversy over Attorney General Alberto Gonzales that would have perplexed the framers. Perhaps the most surprising would have been the relative passivity of Congress in the face of allegations of crimes by the nation’s chief law enforcement officer.

Long before the advent of special prosecutors and blue ribbon commissions, the framers created a system designed precisely for this type of situation: impeachment.

Article II, Section 4 of the Constitution expressly allows for the impeachment and conviction of any “civil officers” guilty of “high Crimes and Misdemeanors.” It is not necessary that such offenses be actual crimes for impeachment. James Madison described many acts of negligence that would be grounds for impeachment, including notably the “wanton removal of meritorious officers.”

The only Cabinet officer to be impeached was William Belknap, a former secretary of War who was charged with accepting bribes for contracts associated with the Indian Territory. The 1878 impeachment made it all the way to the Senate despite the fact that Belknap was no longer in office. While only three Senators believed him to be innocent, he narrowly escaped conviction on jurisdictional grounds by resigning from office. Belknap is buried at Arlington National Cemetery, ultimately succumbing to a “stroke of apoplexy” not long after his impeachment.

The impeachment of Cabinet officers has proved largely unnecessary because most officers gracefully have withdrawn or, when necessary, presidents have encouraged them to attend to “family matters.”

Not only has Congress given ample time and opportunity for Gonzales to step aside, it has withheld action despite highly compelling allegations of criminal conduct. On its face, the current record likely would satisfy most grand juries as sufficient to indict on at least some of the allegations. Indeed, many of Gonzales’ defenses to allegations of false statements routinely are raised by defendants in past cases – and uniformly rejected by his own department in cases such as the Scooter Libby prosecution.

This is not to say that Gonzales does not have valid defenses to make. The point of the House investigation is to determine whether impeachment is warranted, and there is ample record to justify such an inquiry. Consider just a few of the more compelling potential articles for impeachment:

Article One: Violations of Federal Criminal Provisions on Warrantless Surveillance. The National Security Agency program implemented by the Bush administration clearly and unambiguously violated the Fourth Amendment as well as federal law, which defines such warrantless surveillance as a federal crime. Yet this article could prove embarrassing to some Democratic Members who secretly were informed of the unlawful program. Moreover, the person most responsible for these crimes is the president and Democratic leaders repeatedly have stated that they will not consider any impeachment of President Bush.

Article Two: Obstruction and Misleading of Congress in the Course of Its Oversight Responsibilities. Gonzales has demonstrated a clear record of misleading Congress in its effort to investigate violations of the Constitution and international law. Examples of such conduct are numerous. For example, in his January 2005 confirmation hearing, Gonzales was asked by Sen. Russ Feingold (D-Wis.) whether the president could lawfully “authorize warrantless searches of Americans’ homes and wiretaps of their conversations.” Gonzales publicly dismissed the suggestion as merely a “hypothetical situation” when he knew the president had done precisely that for more than three years. Likewise, in April 2005, Gonzales told Congress that “there has not been one verified case of civil liberties abuse” under the USA PATRIOT Act. It was disclosed later that Gonzales had received various reports of precisely such violations, including one shortly before the hearing.

Article Three: Perjury – January 2005. The January 2005 statement constitutes an actionable allegation of perjury given the context. We have learned since then that Gonzales was deeply involved in the program as well as efforts to overcome internal critics of the program from Acting Attorney General James Comey to FBI Director Robert Mueller.

Article Four: Perjury – April 2005. Gonzales’ statement in April 2005 also is a valid basis for articles of impeachment. At the time of the statement, Gonzales was aware that many Americans opposed the act as relying too heavily on self-monitoring and self-control by the Justice Department. Finally, he was presumably aware that violations were found by internal monitors since he received various reports of those violations and those reports were directly relevant to his testimony.

Article Five: Perjury – February 2006. In a February 2006 hearing, Gonzales testified that “there has not been any serious disagreement about the [program].” In fact, we have learned that there was considerable opposition to the program that prompted the extraordinary confrontation at the sickbed of former Attorney General John Ashcroft. Indeed, it is now known that a March 10, 2004, meeting with Congressional leaders was called to inform them of such opposition and the possible need for legislation.

Article Six: Perjury – March-April 2007. On March 13, Gonzales publicly stated that he “was not involved in seeing any memos, was not involved in any discussions about what was going on” with regard to the firing of eight U.S. attorneys. Then, on April 19, he repeated this position to Congress and explained that “I haven’t talked to witnesses because … I haven’t wanted to interfere with this investigation.” These statements appear to be patently false. One of the central figures in the scandal, former Gonzales aide Monica Goodling, testified that Gonzales did question her about her recollection of the facts. Notably, she had gone to Gonzales to ask for a favor: to transfer out the office. Gonzales used this time, when Goodling most needed his intervention, to ask her about her recollection of events – questioning that Goodling stated made her feel “uncomfortable” at the time.

Article Seven: Perjury – July 2007. Most recently, Gonzales testified that a critical confrontation at Ashcroft’s hospital bed “was not about the terrorist surveillance program that the president confirmed.” He was asked about this incident given his prior statements that there was no serious disagreement over the domestic surveillance program. Gonzales’ statement has been directly contradicted by other testimony, most notably that of FBI Director Mueller.

However painful or costly such proceedings might prove, there are far greater costs in ignoring such conduct. Congress cannot continue to call on others to address this controversy. The framers gave Congress the authority to act in the face of defiant contempt or misconduct by civil officers. It should now act as the framers envisioned: fairly but firmly with the initiation of impeachment proceedings.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University Law School.

Constitutional Law, Justice, Politics

Polygamy and Hypocrisy

Posted 10/3/2004

Polygamy laws expose our own hypocrisy
By Jonathan Turley
Tom Green is an American polygamist. This month, he will appeal his conviction in Utah for that offense to the United States Supreme Court, in a case that could redefine the limits of marriage, privacy and religious freedom.
If the court agrees to take the case, it would be forced to confront a 126-year-old decision allowing states to criminalize polygamy that few would find credible today, even as they reject the practice. And it could be forced to address glaring contradictions created in recent decisions of constitutional law.

For polygamists, it is simply a matter of unequal treatment under the law.

Individuals have a recognized constitutional right to engage in any form of consensual sexual relationship with any number of partners. Thus, a person can live with multiple partners and even sire children from different partners so long as they do not marry. However, when that same person accepts a legal commitment for those partners “as a spouse,” we jail them.

Likewise, someone such as singer Britney Spears can have multiple husbands so long as they are consecutive, not concurrent. Thus, Spears can marry and divorce men in quick succession and become the maven of tabloid covers. Yet if she marries two of the men for life, she will become the matron of a state prison.

Religion defines the issue

The difference between a polygamist and the follower of an “alternative lifestyle” is often religion. In addition to protecting privacy, the Constitution is supposed to protect the free exercise of religion unless the religious practice injures a third party or causes some public danger.

However, in its 1878 opinion in Reynolds vs. United States, the court refused to recognize polygamy as a legitimate religious practice, dismissing it in racist and anti-Mormon terms as “almost exclusively a feature of the life of Asiatic and African people.” In later decisions, the court declared polygamy to be “a blot on our civilization” and compared it to human sacrifice and “a return to barbarism.” Most tellingly, the court found that the practice is “contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western World.”

Contrary to the court’s statements, the practice of polygamy is actually one of the common threads between Christians, Jews and Muslims.

Deuteronomy contains a rule for the division of property in polygamist marriages. Old Testament figures such as Abraham, David, Jacob and Solomon were all favored by God and were all polygamists. Solomon truly put the “poly” to polygamy with 700 wives and 300 concubines. Mohammed had 10 wives, though the Koran limits multiple wives to four. Martin Luther at one time accepted polygamy as a practical necessity. Polygamy is still present among Jews in Israel, Yemen and the Mediterranean.

Indeed, studies have found polygamy present in 78% of the world’s cultures, including some Native American tribes. (While most are polygynists — with one man and multiple women — there are polyandrists in Nepal and Tibet in which one woman has multiple male spouses.) As many as 50,000 polygamists live in the United States.

Given this history and the long religious traditions, it cannot be seriously denied that polygamy is a legitimate religious belief. Since polygamy is a criminal offense, polygamists do not seek marriage licenses. However, even living as married can send you to prison. Prosecutors have asked courts to declare a person as married under common law and then convicted them of polygamy.

The Green case

This is what happened in the case of Green, who was sentenced to five years to life in prison. In his case, the state first used the common law to classify Green and four women as constructively married — even though they never sought a license. Green was then convicted of polygamy.

While the justifications have changed over the years, the most common argument today in favor of a criminal ban is that underage girls have been coerced into polygamist marriages. There are indeed such cases. However, banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse. The country has laws to punish pedophiles and there is no religious exception to those laws.

In Green’s case, he was shown to have “married” a 13-year-old girl. If Green had relations with her, he is a pedophile and was properly prosecuted for a child sex crime — just as a person in a monogamous marriage would be prosecuted.

The First Amendment was designed to protect the least popular and least powerful among us. When the high court struck down anti-sodomy laws in Lawrence vs. Texas, we ended decades of the use of criminal laws to persecute gays. However, this recent change was brought about in part by the greater acceptance of gay men and lesbians into society, including openly gay politicians and popular TV characters.

Such a day of social acceptance will never come for polygamists. It is unlikely that any network is going to air The Polygamist Eye for the Monogamist Guy or add a polygamist twist to Everyone Loves Raymond. No matter. The rights of polygamists should not be based on popularity, but principle.

I personally detest polygamy. Yet if we yield to our impulse and single out one hated minority, the First Amendment becomes little more than hype and we become little more than hypocrites. For my part, I would rather have a neighbor with different spouses than a country with different standards for its citizens.

I know I can educate my three sons about the importance of monogamy, but hypocrisy can leave a more lasting impression.

Justice, Politics

Microscopic Humans and Stem Cell Politics

USA TODAY
July 18, 2006 Tuesday

HEADLINE: The case for macroscopic humans;
The stem cell debate this time may be settled quickly with President Bush’s first veto. In doing so, he effectively will choose to protect microscopic masses of cells instead of actual living, breathing human beings. And that’s a travesty.

BYLINE: Jonathan Turley

BODY:

Once again, the nation has returned to the all-consuming debate over the fate of the embryonic stem cell. With the expected passage of a federal stem cell bill lifting President Bush’s harsh restrictions on federal funding, the White House has announced that he will veto the bill despite its overwhelming support among citizens and Republicans and Democrats in Congress. It will be the first veto of Bush’s presidency. All for the protection of the beguiling embryonic stem cell: a microscopic cell taken from a microscopic part of a barely perceptible mass of cells called a blastocyst, or early stage human embryo.

To get an idea of the size of the object of this controversy, consider the dot over the “i” in embryonic. I am told by Tim McCaffrey, a leading researcher of adult stem cells at George Washington University, that the dot would hold hundreds of stem cells, dozens of which would be suitable for research. It would also hold at least one blastocyst that contains the cells.

While imperceptibly small, the blastocyst is undeniably a step in the creation of life. This has turned the blastocyst into the poster (pre-)child for the movement to outlaw abortion. Abortion foes have taken the most extreme possible position in opposing any use of the blastocyst for research — converting the blastocyst into a type of “holy dot.”

Watchful eye is needed

Despite my long support for stem cell research, I am not in favor of unrestricted use of human embryonic material. There are dangers of a slippery slope if researchers could use in vitro fertilization for the sole purpose of “harvesting” such material. But the federal bill would not create such a limitless environment. Rather, it would focus on thousands of stem cells that are the byproduct of genuine in vitro procedures — used with the permission of each donor couple. These stem cell lines are routinely discarded by clinics but could be used for important scientific research.

Stem cell research could ultimately produce cures or treatments for diseases and injuries affecting an estimated 130 million citizens, including people suffering from such ailments as juvenile diabetes, Parkinson’s, ALS and spinal cord injuries. Most treatments remain years away, but stem cell treatment has already begun in Europe for people with heart and nervous system ailments. Clinical tests with animals have shown astonishing success. For example, just last month, it was reported that stem cell treatment can not only repair damaged spinal cords but also regrow them to allow paralyzed animals to walk again.

Given such proven potential, most Americans oppose the president’s restrictions on research. Seven out of 10 Americans support fully funded stem cell research. Even ultraconservative leaders such as Sen. Orrin Hatch, R-Utah, and conservative celebrities such as former first lady Nancy Reagan have opposed Bush’s ban.

Nevertheless, the president opposes even the use of discarded stem cells with the express consent of the couples. It is a position that is comprehensible only to the most extreme activists: Throw the blastocysts out but do not degrade them by extracting the cells for medical research or cures.

Treating these discarded blastocysts as if they’re some microscopic underclass is lost on millions of families with macroscopic loved ones suffering from fatal or crippling diseases. In 2004, I wrote an article on the personal costs of Bush’s policy for families such as my own. At the time, my father, Jack Turley, was fighting the rapidly advancing effects of Parkinson’s disease. On Feb. 19, 2005, time ran out for my father.

This debate is not about abstractions for millions of Americans. For me, it is about my dad. So I will not claim objectivity, nor would I want to. Once you go through the death of a loved one from one of these vicious diseases, you lose patience with the endless debate over the fate of discarded blastocysts.

A real life ended

My father was no abstraction of life. He was my best friend and the man whom I most admired in this world. With my mom and my oldest brother, Dominic, I held Dad as he died in a Chicago hospital room. In the end, he had lost so much weight that we had to bury him in one of my suits and shirts. It was the suit that I was married in — the day that we first suspected something was wrong with Dad, who suddenly could not tie his own tie. As my bride waited downstairs for the ceremony, I remember being slightly embarrassed for my proud father as I knotted his tie. It would be only the first of many increasingly degrading moments for this intensely private person.

Having gone through this nightmare, I cannot work up much sympathy for the holy-dot theory. Nor do I have much patience for the self-described “compromise” of Sen. Rick Santorum, R-Pa., an unflagging opponent to embryonic stem cell research. Facing a tough re-election campaign, Santorum has proposed a bill that calls for more study into the use of non-embryonic cells or ways to remove cells without harming the embryos — which, in the case of the clinic embryos, would then presumably be thrown into the trash “unharmed.”

I know that the loss of five years under Bush would not have made a difference for my dad. But what made me angry — what still makes me angry — is that the president and his allies make the blastocyst, not my father or other ailing citizens, the object of their obsession. They are simply immaterial to the president’s faith-based politics. But these citizens were not some vague potential for life. They lived and, what should concern the White House, they left millions of newly minted single-issue voters.

Politics

Stem Cell Politics

May 18, 2004, Tuesday, FINAL EDITION

HEADLINE: Bush’s stem-cell politics leaves Dad to wither

BYLINE: Jonathan Turley

BODY:
My father is dying from an American political disease. In a nation divided evenly between red and blue states, governmental policies have long been distorted by the gravitational pull of the extremes of the two parties.

For President Bush, policies often have been shaped by his fundamentalist and conservative religious base. While controversial, many of these policies are largely symbolic, such as his unheeded call for an amendment to ban gay marriage. The president’s policy opposing stem-cell research, however, presents a far more deadly concession — one that might secure votes, but at a prohibitive cost of human life.

Stem-cell research is back in the news after former first lady Nancy Reagan’s call this month for Bush to drop his opposition to fully funded research. Former president Ronald Reagan has advanced Alzheimer’s disease and may benefit from stem-cell research. More than 200 members of Congress (including nearly three dozen abortion-rights opponents) responded to the call and asked Bush to lift his extreme limitations on federal funding in some instances. Former presidents Gerald Ford, Jimmy Carter and Bill Clinton have also joined the chorus.

Such a change may come too late for my father. The immediate threat to him is an advanced-stage Parkinson’s disease that is sapping his strength, reducing his mobility and robbing his mind. However, it is not Parkinson’s, but politics, that has proved the greatest burden in our fight for his life.

In his self-described “compromise,” Bush said stem cells (microscopic clusters of cells often discarded by hospitals) must be protected as potential human life. The White House recently reaffirmed that Bush would not allow research to “cross a fundamental moral line.” Bush has yielded to groups such as the American Life League, which sees such research as a “deadly use of . . . human beings who are currently in their embryonic stage of development.”

The president has restricted federally funded researchers to using a small number of existing “stem-cell lines,” created before Aug. 9, 2001. From the outset, the compromise was a bit odd, because if the microscopic cells are “human beings . . . in their embryonic stage,” Bush adopted the ultimate split-the-baby solution.

If they are embryonic humans, it should hardly matter whether they were created before or after August 2001. If Bush accepts that they are not human lives, as some abortion-rights opponents accept, then the restriction is a callous political decision at the potential cost of 130 million Americans with cancer, heart disease, diabetes, Parkinson’s, Alzheimer’s, multiple sclerosis and other diseases potentially treatable — even curable — by advances from stem-cell research.

At the time of his compromise, Bush said there was an ample pool of stem-cell lines for research demands. He insisted that there were about 70 such cell lines, even though many researchers immediately denounced that number as overstated. They have been proved correct. The National Institutes of Health reported last week that there are only 11.

Bush’s policies have proved disastrous for American research that once led the world in this field. Vital federal stem-cell funding has been reduced to $ 17 million a year, forcing states to take the lead in funding research. (In comparison, the Senate has approved $ 50 million to build an indoor rain forest in Iowa.) The loss of federal support has forced some states to try to make up the difference despite crushing debts. Now, top researchers in the USA are moving abroad, where they can fully pursue their research, find breakthroughs and let European companies reap the profits.

In the end, however, the economics and the politics are matters for presidents to ponder. Most of us are left as the ultimate single-issue voters. My single issue has a name: Jack Turley.

An accomplished architect and one of a handful of students trained by the famed Ludwig Mies van der Rohe, he now struggles to maintain his dignity against a disease that first robs you of every ounce of dignity and only then takes your life.

As my father sits in Chicago, 400,000 spare embryos sit in freezers across the country. They could be used to radically speed up research in Parkinson’s and other diseases, but because of the president’s policies, these embryos are likely to be destroyed — a perverse result of protecting “embryonic humans” by discarding them.

Ultimately, every person can elect to accept or reject drugs based on this research. However, the effective bar on federally funded research imposes the president’s religious views on all of us.

I have become blind to Iraq, environmental laws, civil liberties and taxes. I have the myopia that comes with desperation. I cannot see beyond a chair in Chicago where a man sits who once carried me on his shoulders and protected me against every danger.

Part of me resents that suddenly politicians are scrambling for a change in policy because Ronald Reagan has Alzheimer’s and needs help. My dad is one of millions of towering historical figures known primarily to their families. They didn’t beat communism; they did something far more incredible and important: They raised families. They now sit, like Dad, helplessly monitoring not the progress but the politics of disease.

***

Columns, Constitutional Law, Justice

Miranda and the Supreme Court

The Washington Post
June 27, 2000, Tuesday, Final Edition

HEADLINE: ‘Miranda’–Confirmed but Barely Alive

BYLINE: Jonathan Turley

BODY:
“You have the right to remain silent . . .” It’s difficult to imagine what moviemakers would do without the required Miranda warning to top off the arrest scene in just about every cop film they produce. So yesterday’s 7 to 2 vote by the Supreme Court upholding Miranda as a constitutional principle should be a comfort to Hollywood. For criminal defendants, however, Miranda will continue to make better dramas than defenses despite yesterday’s ruling.

The survival of Miranda certainly came as a surprise to many who doubted both the decision’s original basis in the Constitution and its remaining support on a more conservative court than the one that handed down the ruling in 1966, when even Chief Justice Earl Warren could eke out only a 5 to 4 majority from a liberal court.

Yet, Warren’s most famous ruling was ultimately to be preserved by one of his most ardent critics, Chief Justice William Rehnquist. Putting to rest years of speculation over the viability and basis of the ruling, Rehnquist finally established that “Miranda is a constitutional decision” and, by extension, so are the progeny of cases that it inspired. As such, it is a rule that “Congress may not supersede legislatively.”

But despite the sweeping language of yesterday’s decision, there may be less to it than meets the eye. For while the Supreme Court is clearly unwilling to pull the plug, Miranda lingers at best on life support. In fact, the Miranda of the Warren Court died years ago. It succumbed not to a single blow of the conservative majority but to a thousand paper-cuts.

Over the years, the court has allowed a myriad of exceptions that make Miranda a mere symbolic presence in most federal cases. Because of these rulings, reversals of convictions under Miranda are relatively rare events.

For example, the court ruled in 1984 that Miranda warnings are not necessary when the police seek information “reasonably prompted by a concern for the public safety.” Under this “public safety exception,” the police can question a suspect about the location of a gun and then use the evidence against him in court.

Likewise, the court has limited the meaning of “custodial questioning” that triggers the Miranda protection. In a 1977 burglary case, the court found that Miranda did not apply when the chief suspect was “invited” to come to the police station to discuss the crime.

Once a person is in “custody,” the court has narrowed the definition of “interrogation” by holding that “voluntary statements” are not protected, even when made in response to statements by the police. Thus, in a 1980 case a suspect was arrested for murder, and the officers engaged in an anguished discussion of the possibility that children from a nearby school for the handicapped might find the shotgun used in the crime. The suspect promptly incriminated himself by telling them where the gun was. The court held that the officers could not have reasonably believed they would get such a response from the suspect.

Even after “interrogation” begins, the court has allowed for police to secure waivers through acts of deception. For example, the court upheld a waiver of Miranda rights in a 1986 murder case despite the fact that the police lied to a lawyer seeking access to the accused. After telling the lawyer that his client would not be interrogated, the police interrogated the suspect and secured a confession without ever disclosing that his family had hired a lawyer who was trying to see him.

Finally, even when the court recognizes a clear violation of Miranda, it has allowed police to use the evidence. For example, in one of many cases limiting the “exclusionary rule,” the court ruled in a 1971 case that such evidence could be used to “impeach” a defendant if he takes the stand in his own defense.

Ultimately, what saved Miranda from being overturned is probably more its mystique than its meaning. Miranda has become too interwoven in our legal and cultural fabric to simply be dispatched as no longer relevant. The court therefore preserved the body while allowing its spirit to drain away years ago.

There is a legitimate question as to whether Miranda is part of the Constitution, which does not expressly require a duty to inform defendants of their rights. But if it does indeed uphold a constitutional principle, there should be some substance to the protection. Otherwise, yesterday’s reaffirmation of Miranda as constitutional law is little more than a constitutional affectation.

Justice, Politics

Kevin Kelly and the Victimization of a Greiving Family

June 9, 2002 Sunday

HEADLINE: A Tragedy, Not a Crime

BODY:

By all accounts, Kevin Kelly is a loving father who works hard to support his large family in Manassas. The father of 13 children, Kelly was doing sole duty last week when his youngest, a 19-month-old girl, was accidentally left in the family van. She later died.

When most families would be attempting to cope with such a horrific loss, the Kelly family was hit this week with another unimaginable blow. Commonwealth Attorney Paul B. Ebert has announced that he intends to charge Kelly with involuntary manslaughter, a charge that could send him to prison for 15 years. Ebert stated that he wanted to send a message to all parents. Indeed he did. Kelly’s prosecution sends a chilling message of prosecutorial over-reach and abuse. Unfortunately, it is not unique. Increasingly, prosecutors appear to be expressing their outrage over parental negligence through criminal charges, leaving terrible consequences in their wake.

The disaster that struck the family occurred last week when Kelly was watching the children while his wife and one daughter were taking a vacation in Ireland. When the family returned home in their 15-seat van, Kelly enlisted his oldest teenagers to help get all 12 kids into the house. One of the teenagers removed the family’s 3-year-old daughter but forgot the youngest in the van. Kelly assumed that everyone was in the house as he did chores and got pizza for dinner (in another family car). Seven hours later, the child was found dead in the closed van.

This was not the first time that Kelly has lost track of one of his kids. Previously, he left one of his sons at a video store and did not realize that the boy was missing until the store contacted him hours later. But no one has suggested that Kelly knowingly left his daughter in the van, and both parents are described as deeply religious and supportive. This is a case of negligence but not a crime. Criminal cases have long been confined to parents who knowingly put their children at obvious risk, physically abused their children, engaged in drug or criminal activities or showed a history of child neglect.

Ebert does not allege such criminal elements. Nevertheless, Ebert insists that “this case is bigger than Mr. Kelly.” Ebert says that a prosecution of the father is necessary so that “other people will get the message that gross negligence . . . is something that can be prosecuted.” To that end, Ebert stated that he has not decided whether to also criminally charge the teenage daughter as part of his “family learning through prosecution” policy.

Criminal justice is generally based on one of two objectives: retribution or deterrence. Neither objective will be achieved by prosecuting this grieving father. In terms of retribution, no penalty can possibly extract the costs of losing a child due to personal negligence. As for deterrence, Ebert’s belief that prosecution will “send a message” is bizarre. Ebert’s lingering threat is not going to cause parents to be more attentive or less forgetful. You send a message to criminals who act deliberately. Parents are not going to begin to put fail-safe protections into effect because, in addition to losing the most valuable thing in their lives, they risk being served with Ebert’s own brand of punishment.

Ebert is not the first prosecutor to use criminal law to punish parental negligence. In 2000, Paul Wayment was charged criminally after he left his sleeping son in his truck while he hunted. The boy wandered away and was later found dead in the forest. Even the prosecutors admitted that Wayment was not simply a good father but a father totally engrossed in his son. He took his son everywhere and was devastated by the loss. The prosecutors decided to charge but specifically asked the judge not to send the man to jail. However, Utah’s Judge Robert Hilder decided that he had not suffered enough. Hilder told Wayment that he would be sent to jail to consider what he had done. Wayment left the court, went to the spot in the mountains where his son was found and committed suicide. I remain convinced that it was not the prospect of jail but the suggestion that he lacked remorse that proved too much for him. Neither a judge nor a prosecutor was needed to get Wayment to consider what he had done. It would be the defining moment of his life, an agony that only a parent can appreciate. Wayment was certainly guilty of a thoughtless, if not moronic, act in leaving that child in his truck. However, in doing so, he imposed a sentence on himself that was absolute and unappealable.

Our society seems incapable of expressing its most fundamental values without a criminal charge. Prosecution has become a type of exclamation point for social judgments. However, in the Wayment and the Kelly cases, such prosecutions only victimize the grieving to satisfy the vengeful. It is the prosecutorial version of ambulance chasing. Faced with a high-profile death, prosecutors yield to a temptation to express their own views of the parental negligence, as if such a view was in doubt or needed.

Ebert clearly believes that if he hoists a wretch, he can improve child care in Virginia. There is something to this logic that reminds one of the Vietnam War technique of destroying a village to save it. Here, the state will respond to the tragic loss of this child by destroying the family. It will first drain what little funds are available to this large family and then, if successful, it will send the family’s only breadwinner to jail. Ebert insists that “this is bigger than Mr. Kelly.” Not to his family, Mr. Ebert. Before the state victimizes this family in our name, the public needs to send its own message to those who cannot distinguish between true justice and gratuitous punishment.

Constitutional Law, Justice

UnAmerican Arrests: Trap and Arrest in Washington

The Washington Post
October 6, 2002 Sunday

HEADLINE: Un-American Arrests;
Mass detainments of the innocent may be the ultimate form of crowd control, but the tactic is unconstitutional.

BODY:

The urgent calls began late on the first day of the World Bank- International Monetary Fund protests: Students who were either reporters or bystanders had been swept up in mass arrests. The accounts had one common element: All the students were arrested while trying to comply with the law.

The D.C. and National Park Service police had used the same technique in each instance:

Surround the crowd. Tell its members to disperse or face arrest. And then, as people try to disperse, block their escape with rows of officers in riot gear and arrest them.

This happened to a number of student reporters from various universities who were arrested while older reporters were allowed to exit through police lines. One student photographer was clubbed by police while taking pictures. The students then were held in handcuffs on buses for as long as 10 hours before being taken to holding areas for the night, where they slept with one wrist handcuffed to an ankle. Police told them they would be held until Monday if they challenged the arrests but would be released immediately if they pleaded no contest.

Obviously, with thousands of protesters and fluid conditions, police can make mistakes. However, the practice of intentionally encircling large numbers of people for mass arrests, whether or not any law is being broken, was no mistake.

The protests occurred outside the dormitories of some George Washington students, and the university’s law school is located across from the International Monetary Fund and down the street from the World Bank. Many students who were arrested report that they were never told to disperse. The Constitution protects a person’s right to witness public events. While the city may prohibit protests without a permit, it is not allowed to arrest people who are not engaged in such protests. It must give people, including bystanders, an opportunity to leave the area. The error some people made last week was not in their understanding of the law but in their expectation that the D.C. police would comply with it.

The practice of preventing withdrawal seems calculated to maximize arrests in order to remove large numbers of people from the streets. This view is reinforced by the fact that hundreds of people were held until Saturday evening, then released in a perfunctory manner. While they could have been released within hours of their arrest, their continued detainment achieved the purpose of disrupting the protests.

Most officers showed professionalism and restraint during the demonstrations. Moreover, some protesters who sought to interfere with traffic or to protest without a permit were legitimate targets for arrest. But many seemed to have been taken into custody through the trap-and-arrest policy.

It is hardly difficult to make the D.C. streets as orderly as Beijing’s if police can arrest large numbers of people without cause. However, this technique is both distinctly unconstitutional and un-American.

The D.C. Council should investigate whether police:

* Prevented crowds from dispersing by closing off exit points as a prelude to arrest.

* Kept people in shackles for more than 24 hours.

* Used excessive force when people tried to disperse through police lines or in the course of the mass arrests.

* Held hundreds under the pretense of administrative delays in order to deplete the protests.

If the council finds that there was such a policy, police management (including Chief Charles Ramsey) should be held accountable. A trap-and-arrest policy may be the ultimate form of crowd control, but it is neither a constitutional nor a commendable practice. Unless there is an investigation and corrective action is taken, this convenient policy of crowd suppression is likely to become standard operating procedure in our nation’s capital.

Justice

Snow Removal and Democracy

The Washington Post
February 23, 2003 Sunday
HEADLINE: How Democracy Could Clear Our Snowy Streets

BODY:

I’ve been thinking about snow and democracy recently. It’s hard not to when you’re confined at home for five days because of the absence of snow removal. But while last weekend’s storm was of historic proportions, my confinement was nothing new.

As someone who has lived in this area for years, I know that snow removal on side streets ranks about as high as raccoon removal among local governmental priorities. In Alexandria, where I now reside, snow removal is called spring.

The way to end this naturalist approach to winter is simple: Make the positions of street and sanitation director two-year elected posts in jurisdictions throughout the region.

Every time it snows, citizens complain about snow removal and city officials express their surprise about the size of the storm. These officials then explain that crews are working overtime and call for patience from the public. Snow removal is treated like a venture into the unknown. In reality, it is a simple ratio of snow to snow crews: more crews, more snow removal.

Many citizens have resigned themselves to the fact that they probably will have to wait days before their neighborhood sees a plow. Others are outraged by the situation, but their bitter memories melt with the snow.

In Chicago, where I was raised, we threw out Mayor Michael Bilandic in 1979 because the streets were not cleared within 24 hours after a 20-inch snowfall. Since then, Chicago officials have cleared the streets as though their jobs depended on it.

In my Alexandria neighborhood, side streets remained impassable until late Tuesday, three days after the storm hit. The lack of plowing kept many people from their jobs at a huge loss in productivity. Local businesses suffered. By Tuesday morning, some neighbors had tried to force their cars over almost two feet of snow, and the streets were littered with cars looking like so many frozen mastodons.

The blame for this did not lie with citizens, who were driven to desperate self-help measures, but with government officials, who allow the streets to devolve into anarchy every time six inches fall from the heavens. Yet we have no place to direct our anger about substandard snow removal, except toward some unknown apparatchik who runs the local transportation department. Elected positions for streets and sanitation would permit the public to express its satisfaction or dissatisfaction with services. While few of us follow the work of local representatives, almost all of us are intimately familiar with the performance of the street and sanitation directors.

If these positions were subjected to two-year elected terms, citizens would be able to change snow removal policies by changing directors. This would engender competition among candidates to identify problems and propose solutions. It also wouldn’t let mayors and county executives off the hook for feeble snow removal efforts: If elected street or sanitation officials were shortchanged by a county council or a mayor, they would have every incentive to make the true source of the disaster known.

When James Madison and his colleagues were crafting our democratic system, it is doubtful that they saw direct election as a key to snow removal. However, as I sat captive in my home, it seemed clear that more democracy in our government would mean less snow on our streets.

LOAD-DATE: February 23, 2003

Justice

Stun Guns and Torture at the Push of a Button

August 28, 2003 Thursday

HEADLINE: Torture at the Push of a Button

BYLINE: Jonathan Turley

BODY:

Last week accused sniper John Allen Muhammad raised a point of legal procedure and received a shocking response — literally. Muhammad objected to a medical test that had not been ordered by the court or discussed with his attorney. In response to his refusal to cooperate, the guards activated a stun belt that sent a powerful electrical charge through his body.

While few people in this region have sympathy for Muhammad, the use of a 50,000-volt shock was a disturbing introduction to this common device. In fact, the use of the stun belt in such a circumstance is unlawful but not unique. Stun belts have been denounced internationally as a violation of basic human rights. Local government and Congress should insist on new guidelines, if not a ban, on the use of these devices.

At $ 800 each, stun belts are the closest thing to a fashion craze in the correctional field. For the well-appointed prosecutor or prison guard, they’re a must. The devices are battery-operated and fit around the waist of a prisoner. The guard holds a simple remote control that sends an eight-second, 50,000- to 70,000-volt surge through a prisoner, causing immediate loss of muscular control and incapacitation. When shocked, many individuals will defecate or urinate on themselves. Some can experience fatal cardiac arrhythmia. Muscular weakness and temporary paralysis or weakness continue for 30 to 45 minutes. Last spring Wisconsin sheriffs held a public display to show the media how harmless tasers (stun guns) and stun belts are by shocking one of their own deputies, appropriately named Krist Boldt. Boldt was hit with a five-second jolt and was sent to the hospital with a head wound after he hit the floor.

The increasing use of stun belts in the United States has alarmed some of our closest friends internationally. Stun belts have been defined as a torture device by Amnesty International, which describes them as “cruel, inhumane and degrading.” The United Nations Committee Against Torture has objected that they may violate the Geneva Conventions.

Despite such human rights objections, stun belts are used in 30 state prisons and all federal trial courts. For prisoners, they have the same effect as a taser gun pointed continually an inch from their heads. At any moment, a guard can flip a switch and turn you into a quivering, incapacitated freak. Indeed, the stun belt’s ability “to humiliate the wearer” is cited as a “great advantage” by one company’s literature — impressing on a defendant that “the mere push of a button in someone else’s hand could make you defecate and urinate yourself.”

A court recently found that accidental triggerings occur regularly. For example, murder defendant Roy Hollaway of Las Vegas was at a critical stage of his trial, with a prosecutor pointing to him and asking the jury “how deep, deep into this man’s being does this violence run?” As if on cue, Hollaway’s stun belt was triggered and 50,000 volts coursed through him. As the jury watched, Hollaway flailed and foamed on the courtroom floor.

It is because of the constant threat of an intentional or accidental shock that some courts have banned or restricted the use of stun belts in court. Last year the California Supreme Court effectively banned the use of hidden belts during criminal trials, rejecting claims that conventional restraints and proper supervision cannot satisfy security concerns. Other states, such as Indiana, have also banned them.

The use of a stun belt on Muhammad appears abusive and should be investigated as a potential case of criminal assault. In the United States, a prisoner cannot be physically attacked for a refusal to submit to a medical test. In this case, Muhammad reportedly refused to submit to an X-ray without speaking with his counsel. Muhammad had agreed to a court-ordered MRI, but objected that the X-ray was never raised. According to The Post, Muhammad was restrained by the wrists and ankles and never became violent. The stun belt was apparently used to punish him and force him to conform to the wishes of the guards. With stun belt literature promising guards “total psychological supremacy” over inmates, an inmate’s failure to yield can enrage a guard and easily lead to such “corrective action.”

There is no difference between this alleged use of a stun belt and an officer beating Muhammad with a club or shooting him for failing to yield to commands. Yet such abuses are rarely treated as criminal matters. In June 1998, Long Beach Superior Court Judge Joan Comparet-Cassani ordered a deputy to shock a defendant, Ronnie Hawkins, after he repeatedly interrupted her. A judicial review board refused to impose disciplinary action on the judge, who continues to try cases in California.

Various ways exist to control or punish an uncooperative prisoner short of some Pavlovian use of electric shocks. In Muhammad’s case, he could have been punished administratively for the failure to obey an order, assuming that he was wrong.

Stun belts should be prohibited from use in court and in all but the most extreme correctional circumstances. At a minimum, this case calls for new restrictions and training and a commitment to prosecute guards who use excessive force.

The writer is Shapiro professor of public interest law and directs a prison project at George Washington Law School. He will answer questions about this column during a Live Online discussion at 2 p.m. today at ww

Justice

The Black Tax: Reparations and the Scamming of the Black Community

November 9, 2003 Sunday

HEADLINE: The Black Tax;
Of charlatans, crooks and victims and the reparations scam.

BODY:

Last month a federal court in Richmond finally took action against one of the country’s most virulent tax scams: the “black tax credits.” Crystal Foster, 25, and her father and tax preparer, Robert Lee Foster, 51, were sentenced for claiming — and receiving — tax refunds as reparations for slavery. Crystal Foster claimed a taxable income of only $3,429 but demanded $500,000 from the government in reparations — and got it. The IRS actually paid her $507,490.91 to cover the interest due to the delay in sending her a check.

Cases such as the Fosters’ have fueled a cottage industry of charlatans and crooks pushing the promise of a “black tax” in what might be the greatest tax fraud in American history. The Internal Revenue Service has campaigned against the myth of a black tax for years, warning citizens that such claims amount to fraud, yet tens of thousands of claims are filed annually.

The court ordered Crystal Foster to repay the money that the IRS mistakenly had paid her and sentenced her to 37 months in prison. She had spent most of the $500,000 on a Mercedes, loans and gifts within eight days of receiving the payment. Her father was given a 13-year sentence on four counts of conspiracy to defraud the government. Similarly, Gregory Bridges, a tax accountant in Woodbridge, was convicted in June of preparing more than 100 such fraudulent returns for D.C., Maryland and Virginia residents.

The origin of the black tax and the story of its many victims combines a misunderstanding of history, raw political opportunism and old-fashioned greed.

The myth began with the April 1993 issue of Essence magazine and a piece by “journalist and economics consultant” L.G. Sherrod. Sherrod informed readers that the United States owed them for the value of the 1866 promise of “40 acres and a mule.” Citing as an authority “The People’s Institute for Economics,” she said that the adjusted value of this broken promise was $43,209. Readers could claim this amount, she advised, by writing on line 59 of tax form 1040 — which asks the filer to list “other payments” — the $43,209 in black taxes.

At first blush, one might assume that this was a joke. After all, by the same logic, one could calculate the current value of “a chicken in every pot and a car in every garage” promised in 1928 by Herbert Hoover. However, the IRS was deluged by refund requests, often with a copy of the Essence article attached. A legend had been born. Incredibly, the IRS paid out tens of millions in such refunds before realizing its mistake.

The black-tax theory is based on a mix of bad historical and legal knowledge. The promise of 40 acres and a mule was never an enforceable obligation by the government. In 1865 Gen. William Tecumseh Sherman signed Special Field Order No. 15, which made the promise. The basis for the promises was dubious because the land was largely confiscated. Government officials at the time argued that the ex-slaves could live and work the land for three years and then buy it. The ex-slaves and others viewed the land as payment for their bondage.

Within months 40,000 ex-slaves occupied 300,000 acres from South Carolina to Florida. President Andrew Johnson then rescinded the order and allowed the original owners to reclaim their land — leaving a wound that remains open today. While there were attempts to pass a law returning the land to the ex-slaves, the law was barred by Johnson, and no formal bill was signed.

This would have remained an arcane academic debate if Essence hadn’t published what amounted to a “how to” on tax fraud, playing into the hands of unscrupulous tax preparers who promised windfall refunds. In just one church, a preparer persuaded more than 1,500 people to give him $200 each to secure the refund. A few weeks ago, two people were charged in Mississippi for allegedly promising rebates of $43,209. People allegedly paid them between $25 and $6,500 for such tax advice. Ultimately, 6,300 African Americans were defrauded of $1.1 million.

Yet despite articles exposing the fraud and citing penalties, the legend just won’t die. In 2001 the IRS received more than 80,000 returns demanding $2.7 billion in refunds — most asking for $43,000. Amazingly, the IRS mistakenly paid out at least 130 such refunds in 2000 and 2001 — equaling $30 million.

While people often receive a warning from the IRS and drop the issue, others have received $500 fines and some have been prosecuted. However, most promoters have faced only fines and orders barring them from doing future work on tax returns.

Highly suspect lawsuits have been filed for reparations with the public support of black leaders, who insist that African Americans are entitled to such payments as a legal matter. Moreover, few black leaders have publicly denounced the concept of a black tax or warned citizens against participating in such filings. Instead, some leaders at a D.C. reparations conference a few years ago encouraged African Americans not to file a tax return at all — under a claim of immunity as descendants of former slaves. This has created the perfect environment for those eager to profit from the lingering sense of injury among black Americans, particularly among those who mistake political rhetoric for legal entitlement.

As for Essence, it has never fully apologized for its role in the creation of this fraud. A few years after the scam took flight, the magazine ran a brief reference to the article and noted “although many historians” supported the claims, the IRS did not. Economics consultant L.G. Sherrod reappeared as Lena Sherrod, who now advises people on their “economics” as finance and careers editor at Essence.

As for the Fosters, the scam is over, but the myth of the black tax continues. Of course, the myth did not appear spontaneously in the District or any other place. It required a mix of reckless political activism, bad journalism and outright fraud. Tragically, the victims of this fraud are black Americans who have been and continue to be ripped off by those who seek popularity or plunder at any price.

Justice, Politics

From Adultery to Polygamy: The Dangers of Morality Legislation

The Washington Post
September 5, 2004 Sunday

HEADLINE: Of Lust and the Law

BYLINE: Jonathan Turley

BODY:

Last month, John R. Bushey Jr. was finally brought to justice in a small courthouse in Luray, Va. Bushey, the former town attorney, stood before the court as an accused criminal with reporters from all over the state in attendance. The charge was adultery. Like 23 other states, Virginia still might prosecute if a husband or wife has consensual sex outside the marriage. Ten states, including Virginia, have anti-fornication statutes as well, prohibiting sex before marriage. Like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens.

These morality laws go back to the church-based “bawdy courts” of 13th-century England. Yet, the Bushey case illustrates that there are prosecutors today who remain eager to perform this quasi-ecclesiastical role — to publicly defend the institution of the monogamous marriage, and the unwed, from the ravages of lust and desire. Because these are often unrecorded misdemeanor cases, the specific number of prosecutions is impossible to determine. However, the Bushey case is far from unique. Since 1980, adultery cases have been recorded from Alabama to Massachusetts to Pennsylvania. And in 2003, Georgia prosecuted an anti-fornication case.

This latest adultery prosecution, in a county circuit court in Virginia, should motivate us to finally ban our American version of bawdy courts and force ambitious prosecutors to focus on our courtrooms rather than our bedrooms.

For 32 years, John Bushey, 66, served as the attorney for Luray — a small Shenandoah Valley town of 4,500 people. He had been married for about 18 years to Cindy Bushey, the town’s clerk. John Bushey, however, had an affair with Nellie Mae Hensley, 53, and after the affair ended, Hensley seemed to prove the adage “scratch a lover, find a foe.” Instead of going to the betrayed spouse or to her minister, she went to the police. While Hensley was divorced, Bushey was married and therefore subject to a criminal adultery charge, a misdemeanor.

The Bushey case seemed like the perfect vehicle to get the U.S. Supreme Court to finish work that it began in the 2003 case of Lawrence v. Texas, when the Court struck down anti-sodomy statutes. At one point, Bushey agreed to pursue such a course, and the American Civil Liberties Union took up his case. He kept changing his mind, however, first pleading guilty, then withdrawing the plea and pledging to fight as a matter of principle. Finally, in August, he surprised many observers by accepting 20 hours of community service as punishment for his offense. (His former lover publicly expressed outrage that Bushey would not receive a criminal record for his adulterous affair with her.)

Unfortunately, with his last-minute acceptance of punishment, Bushey implicitly accepted that the state of Virginia has a right to punish him for his moral failings. The far more important question is not Bushey’s faithfulness to principle (or to marriage), but the continuation of this archaic criminal provision, which also exists in Maryland and the U.S. military. (Such a law was recently repealed in the District.) The prosecutor in Bushey’s case, Assistant Commonwealth’s Attorney Glenn Williamson, staunchly defends the state’s interest in prosecuting adulterers. When a former lover comes to the police, he insists, the state must prosecute. His rationalization is baffling since, according to studies, he could throw a stick on any corner and probably hit a couple of adulterers.

A famous 1953 study by Alfred Kinsey found that 50 percent of married men and 26 percent of married women had engaged in adultery by age 40. A recent study by Ball State University reported that women under 40 have caught up to men in adulterous affairs. Other studies have shown that between 5 to 15 percent of married couples have “open marriages.” If Virginia were going to prosecute evenly, untold married couples in the state could be subject to prosecution when a former lover opted for the satisfaction of a public charge to heal private injury.

Imagine the work for the courts if prosecutors vigorously enforced the laws against fornication, which is generally defined as premarital sex — a crime that a 1988 study found was practiced by more than 75 percent of women and more than 80 percent of men by the age of 19.

Williamson stressed that he had prosecuted other adulterers and was grateful that “as far as general deterrence, it should now be widely known that adultery is a crime in Virginia.” It is certainly widely known after Williamson has hoisted some wretch for all unfaithful spouses to contemplate. But is it right?

With the medieval bawdy courts, the Anglican Church tried the unfaithful and imposed criminal punishments for “whoredom.” At least six adulterers were executed in England. Since women were viewed as the property of their husbands, these cases were often tried as matters of theft or trespass to chattel. Bawdy courts were embraced by such organizations as the Society for the Reformation of Manners, which supplied the dirt on the unfaithful during the 17th and 18th centuries. These cases were called “criminal conversation” and were uniformly brought by cuckolded husbands. Notably, criminal conversation laws were repealed around the time that women were given the ability to bring such lawsuits in England in the 18th century.

When the Puritans landed in the New World, they wanted their own bawdy trials. There were no church courts, but most states eventually passed laws criminalizing an assortment of private consensual conduct ranging from sodomy to fornication to adultery.

In the Colonies, adultery was once a capital crime and there are at least three recorded cases of people who were executed for adultery, and others were branded with an “A” on their foreheads. (At least one other adulterer, Thomas Newton, escaped in Connecticut shortly before his hanging). Women were routinely stripped to the waist and publicly whipped. In many cases, the convicted were given heavy fines and shaming punishments. A common shaming punishment (taken from England) was recorded in a 1640s Virginia case: the unfaithful were ordered “to stand in the middle of the . . . church upon a stool in a white sheet, and a white wand in their hands, all the time of divine service and shall say after the ministers such words as he shall deliver unto them before the congregation there present and also pay the charges of the court.”

While bawdy courts once mandated harsh punishments for adultery, today’s laws generally have lesser sentences of up to a year in jail and small fines.

It should be obvious that such laws governing private, consensual acts are no longer valid after the Supreme Court decision in Lawrence, but the Court did not actually set these laws aside when it ruled anti-sodomy statutes unconstitutional, even though it stressed that anti-sodomy laws further “no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” While the Court did not address anti-fornication or adultery statutes, the dissenting justices specifically noted that the decision placed such laws in jeopardy. Self-described “morality advocates,” however, have resisted. Thus, Virginia cannot criminalize the act of sodomy between consenting adults but can often prosecute the same adults for having sex in any form under the adultery law.

Del. David B. Albo (R-Fairfax), who is in charge of streamlining Virginia’s criminal code, doesn’t approve of outsiders tampering with morality laws. The Lawrence decision, he complained, is “a perfect example of how the Supreme Court is inserting its own views into Virginia law.” Of course, Albo appears to have less of a problem when inserting his own moral views into the bedrooms of Virginia adults. Virginia, which is seeking to repeal its anti-fornication and anti-sodomy statutes, decided to keep adultery a crime.

Del. Brian J. Moran (D-Alexandria) insists that adultery must remain a crime because “adultery is wrong, and we were not going to eliminate a criminal action even though it has been infrequently prosecuted.” While many would agree adultery is wrong, there are plenty of things that are “wrong” but not crimes, such as betraying boyfriends or girlfriends in unmarried but monogamous relationships. Finally, the law is currently applied in a ridiculous fashion with only Bushey and a few others pulled out for prosecution from a virtual sea of adultery.

The real reason these laws go unchallenged appears to be self-serving politics. Joseph F. Murphy Jr., chief judge of the Maryland Court of Special Appeals and chairman of a committee to overhaul the Maryland code, put it bluntly. “You can imagine what would happen if you tried to take adultery off the books at this point. You would have a large group of people who would complain bitterly about it as another example of that state losing its moral compass.”

It takes courage to take such an action — something apparently in short supply in Virginia, Maryland and some other states.

Citizens should be able to police their marriages without the help of the Commonwealth of Virginia or the other 23 states. These laws have not deterred many adulterous spouses. They invite arbitrary prosecutions in courtrooms replete — it is statistically certain — with adulterous prosecutors, cops, jurors, clerks or judges.

And, these same courts are inundated with divorce cases of proven and admitted adultery by individuals who are never prosecuted — making such prosecutions as random as a societal drive-by shooting.

Since the days of the bawdy courts, women are no longer deemed chattel and towns no longer maintain a “whore’s chair” for public humiliation of adulterers and fornicators.

Bawdy courts have no place in a nation that cherishes individual choice and privacy. Let’s put an end to them — and leave morality prosecutions as a matter of historical interest for 13th-century scholars.

Constitutional Law, Justice, Politics

Right Goal, Wrong Means: A Vote for the District of Columbia

The Washington Post
December 5, 2004 Sunday

HEADLINE: Right Goal, Wrong Means

BODY:

Many D.C. citizens have been elated to hear about a plan to make the city into a congressional district — without the need for a constitutional amendment. That’s understandable. Residents of the District are in the unenviable position of paying taxes and yet having no true voting representative in Congress. However, the plan, known as the District of Columbia Fairness in Representation Act, would achieve a noble goal by ignoble means.

The bill, the brainchild of Rep. Thomas M. Davis III (R-Va.), chairman of the Government Reform Committee, would expand the number of House members from 435 to 437 to allow for a congressional district in Washington. To satisfy Republicans, Davis’s bill also would give Utah an additional district.

Utah, which fell just a handful of citizens short of another congressional seat in the last census, is expected to get an additional district as a result of the 2010 census. Under Davis’s plan, it wouldn’t have to wait.

Davis appears to genuinely favor a voting member for the District, and he saw an opportunity for a trade. “I don’t feel it’s a sign of weakness in our system to have to consider politics as part of the process,” he said. “Political considerations are neither good nor bad, they simply are.”

However, in matter of constitutional interpretation, politics is a poor substitute for principle. One of the greatest burdens of being a nation committed to the rule of law is that how we do something is as important as what we do. The Davis proposal would subvert the intentions of the Founders by ignoring textual references to “states” in the Constitution as the sole voting members of the houses of Congress. It also would create a city of half-formed citizens who could vote in the House but not in the Senate.

The controversy began almost 222 years ago with a riot. On Jan. 1, 1783, a large group of Revolutionary War veterans marched on Philadelphia, demanding their long-overdue back pay. Congress demanded that Pennsylvania turn out the militia to quell the rioters, but it refused. Congress then fled, first to Princeton, N.J., then to Annapolis and ultimately to New York City.

By the time congressional leaders gathered again in Philadelphia in 1787 to draft a new Constitution, one issue was prominent on many legislators’ minds: the creation of a federal district for the seat of government that would not be a part of any state. The members of Congress wanted to avoid, in the words of James Madison, the unwarranted “imputation of awe or influence” afforded to the host state of a permanent capitol.

The result was Article I, Section 8, of the Constitution, which created a federal enclave exclusively under the authority of the federal government. Virginia and Maryland agreed to pony up land for the enclave, which was gratefully accepted by Congress in 1790. Later, Congress gave some of Virginia’s land back. (The caged stones marking the original parameters of the federal district still can be seen in Northern Virginia.)

Not only does the Constitution not give the federal district a voting member in either house, it created the District precisely to be a non-state under the authority of the states represented in Congress. Article I, Section 2, specifies that members of the House are to be chosen “by the People of the several states.” Likewise, Article I, Section 3, refers to a Senate composed of two senators “from each state.” The makeup of these houses was a delicate balance, and it was a primary focus of the Constitutional Convention.

While the courts have recognized that Congress could give the District many of the same institutions and procedural rights as states, they have never suggested or ruled that Congress can create a new, fully voting member of Congress without a constitutional amendment. Indeed, when Congress wanted to give D.C. residents a voice in the election of the president, it passed the 23rd Amendment, ratified in 1961. That change notably gave the District electoral votes to which it “would be entitled if it were a State.”

Now, after failing in 1978 to ratify a similar amendment on voting rights for the District in both houses, voting-rights advocates want to avoid the constitutional process through a simple vote in Congress. Thus the Davis proposal becomes a celebration of contemporary politics over constitutional principle.

The way to achieve full representation for citizens of the District is to return the city to Maryland and reduce the federal enclave to the core of Capitol Hill and a few of its closest blocks. That is precisely what occurred when the Virginia land taken for the District was “retroceded” to the commonwealth in 1846.

Of course, strong political forces in the District and Maryland would not support retrocession. For one thing, Robert L. Ehrlich Jr. likely would be the last Republican to hold the governorship of that state for some time. Yet before we create hybrid constitutional entities, we should use the most obvious vehicle for giving voting rights to D.C. citizens without a constitutional amendment.

The amendment and retrocession processes are hardly easy, but, to paraphrase Davis, such constitutional considerations “are neither good nor bad, they simply are.”

Academia, Justice, Politics

The Return to Separate But Equal

The Washington Post
February 13, 2005 Sunday

HEADLINE: Good Intentions Aside, Separate Still Isn’t Equal

BYLINE: Jonathan Turley

BODY:

Few legal doctrines are more dangerous or despised than that of separate but equal rights — the philosophy that legitimized racial apartheid in the United States. It took the sacrifices of the civil rights struggle to put an end to both this doctrine and the officially sanctioned segregation that it justified.

Yet only months after the nation celebrated the 50th anniversary of Brown v. Board of Education — the landmark Supreme Court decision that struck down the doctrine as unconstitutional — some public and private institutions are again dabbling in separate but equal policies.

Two examples highlight this insidious trend. The first comes in the very area in which the battle for civil rights was waged most fiercely decades ago — the schools. It involves a New York City high school created specifically for gay and lesbian students two years ago.The second concerns the California prison system, whose 25-year policy of strict racial segregation of incoming prisoners has been challenged in a case now pending before the U.S. Supreme Court.

Both plans are being vigorously defended on pragmatic grounds — arguments long used by segregationists. From the court’s first articulation of the doctrine in 1896, separate but equal was always an exercise of pragmatism over principle. Rather than confront racial animus, society chose to yield to it — to achieve the appearance of racial coexistence through racial separation. While there are clearly differences between the old segregationists and the new (particularly in terms of their motives), there remain striking similarities in their methods.

New York’s Harvey Milk High School was created with the best possible intentions. Named for the assassinated San Francisco gay rights leader, it was meant to provide a sanctuary for gay and lesbian students who face tremendous pressures and even violence in many schools.

Gay rights activists have long modeled their work on the civil rights movement. But such civil rights leaders as Martin Luther King Jr. and Thurgood Marshall steadfastly refused to accept segregation in public schools — even though thousands of black students faced violence in desegregated systems. They understood that, to be truly equal, blacks had to be assimilated into every aspect of American life, even if the objective could only be reached after a period of painful confrontation.

Much like the integration of black students into white schools, the rise of a new generation of openly proud gay and lesbian students has led to greater tensions in New York schools. The city’s response was to essentially remove the victims and call it an act of reform. Mayor Michael Bloomberg defended the policy on the grounds that a separate school “lets them get an education without having to worry.” Yet, in classic civil rights terms, it is hard to see how removing gay students is any more a solution to homophobic violence in New York schools than removing James Meredith would have been a solution to racial violence at the University of Mississippi.

Harvey Milk — or Gay High, as it is often called — has become a lesson in the unintended consequences of segregation. Its creation reinforces the stereotype of gay students as fundamentally different and in need of special treatment. Some have suggested that the $3.2 million spent to establish the school could be better used to create a systemwide program of counseling and education for all students on the issues of sexual orientation and discrimination. In a city with roughly 300,000 public high school students, Harvey Milk’s 100-student capacity can handle only a small fraction of the city’s gay, lesbian, bisexual and transgender teenagers. The remainder must deal with the stigma of a segregated group and predictable taunts that they should “go to Harvey Milk,” where they belong.

On America’s other coast, California provides a second example of a separate but equal policy. The state prison has sought to control violence and reduce gang activity by temporarily segregating incoming prisoners on the basis of race. Hispanic prisoners from Southern California are separated from those from the north; Japanese and Chinese inmates are kept apart; and smaller groups — Laotians, Vietnamese, Cambodians and Filipinos — are segregated as well.

Other large states such as Illinois and New York face similar gang demographics, but none has adopted this sort of automatic segregation. California’s policy of yielding to racism rather than fighting it began almost three decades ago with small concessions, and escalated into a systemwide policy of apartheid for convicts entering any prison. In 1999, when tensions between northern and southern Hispanics erupted into riots at Pelican Bay State Prison, the standard response of corrections professionals elsewhere would have been to crack down on the inmates with a policy of zero tolerance of violence. Instead, California solved the problem by sending each group to its own prison, where it could reign as the dominant Hispanic gang.

Despite the fact that this racial segregation policy has been in place for 25 years, California prisons continue to convulse with racial violence. In 2002, there were about 7,000 incidents of assault and battery and seven deaths — the vast majority linked to racial gangs.

Officials insist that the violence would be worse without segregation for new prisoners. The federal appellate court in San Francisco agreed last year, rejecting a challenge from Garrison Johnson, a black prisoner who refused to join a gang and felt more threatened in a segregated environment. Using a test heavily weighted in favor of the prison, the court demanded that Johnson prove the impossible — that violence would not occur in cells if the policy were lifted. Officials insist that they are just dealing with the realities of racial gangs and their mutual hostility. One prison official observed that “if we have a Northern Hispanic with a Southern Hispanic, they already have a conflict before they come to prison” and the best thing is to simply give them their own space. It is the very logic that the Supreme Court used when it created the separate but equal doctrine in Plessy v. Ferguson, saying the Constitution did not require “a commingling of the two races upon terms unsatisfactory to either.” Integration, the court said then, would have to be “the result of natural affinities, a mutual appreciation of each other’s merits and the voluntary consent of individuals.” It seems unlikely that the white skinheads, black Crips, and Hispanic Fresno Bulldogs will achieve “mutual appreciation” any time soon.

The decisions to embrace separate but equal policies in a high school and a prison system are telling and tragic. Both schools and prisons represent controlled environments that strive in part to shape future conduct through compelled behavior and observation. High schools are the last such environment before most individuals join the larger society — they are the critical forum to teach not just basic curricular skills but basic citizenship skills. Removing gay and lesbian students allows prejudices and intolerance to continue unnoticed and unaddressed, permitting hateful students to become hateful adults.

Prisons are populated by certifiably asocial individuals, who failed to learn basic social principles and values. As a controlled and supervised environment, the prison is supposed to reinforce social rules of conduct through compulsory measures. The segregation policies of the California prisons not only leave racist and violent impulses unaddressed, they actually reinforce those impulses by yielding to them. A segregated prison is fertile ground for gang recruitment.

Equally disturbing is the growing level of “self-segregation” in institutions where there is no claim of racial violence or intolerance. Some colleges and universities now hold official and separate graduation ceremonies for certain minority groups; a growing number have created separate housing aimed specifically at minorities. The University of Pennsylvania houses almost one-quarter of its African American students at the W.E.B. Du Bois College House, and other schools including the University of Michigan and Dartmouth College have similar options. In a rhetorical echo of the Plessy decision, the segregated dormitories at Dartmouth are called “affinity houses.”

While many of these are voluntary choices by the students, such self-segregation still frames the academic experience in at least partially racial terms. This lesson was not lost on one Latino student at Amherst College, who was quoted in a report by the New York Civil Rights Coalition as saying: “Before I came to Amherst, I wasn’t thinking about race or class or gender or sexual orientation, I was just thinking about people wanting to learn.”

The resurrection of separate but equal is not some reflection of its inherent truth or merit. Rather, it is a reflection of a society that has increasingly favored the most expedient over the most ethical means of addressing contemporary problems. The separate but equal doctrine was the very scourge of the civil rights movement, but it continues to have pragmatic appeal — certainly over the more abstract principle of integration. After all, principle is often quite costly while pragmatism offers at least the outward appearance of tranquility at a bargain price. However, as new citizens walk out of places like the New York schools and California prisons, society may rediscover not just the convenience but the costs of separate but equal programs.

Justice, Lawyering

Celebrity Justice and the Case of Michael Jackson

June 19, 2005 Sunday
HEADLINE: Michael, Meet Fatty. And Errol and Martha and . . .

BYLINE: Jonathan Turley

BODY:

“Not guilty by reason of celebrity,” was one common reaction to last week’s acquittal of Michael Jackson on all 10 counts against him. The notion of “celebrity justice” — as distinct from conventional justice — has taken hold across America. Indeed, it has its own show, the syndicated “Celebrity Justice,” and there are self-described “celebrity justice correspondents” at Fox News and CNN. (CNN features two to handle the occasional sensational overload.) The cottage industry built around celebrity trials is based on the flawed assumption that the rich and famous are given free rides by jurors or simply prevail because of their ability to assemble dream teams of high-priced attorneys. Yet, these trials are different in other respects. For attorneys, the rules are often reversed from conventional criminal trials on such questions as when to put defendants on the stand or whether to attack victims.

One of the first to receive the label “Trial of the Century” was the 1921 trial of film star Roscoe “Fatty” Arbuckle for allegedly raping and killing showgirl Virginia Rappe. The trial was one of the first glimpses into the celebrity Babylon of Hollywood, ranging from Arbuckle’s bacchanalian parties to his custom-made Rolls-Royce with a toilet installed in the back seat.

After three trials, Arbuckle was acquitted and the jury even apologized for the “great injustice . . . done him.” But it was too late for the public. Fatty got us hooked, and we are still trying to get that voyeuristic monkey off our backs. A stream of celebrity cases followed, revealing the often sordid lives of the celebrity class. Among them was the 1958 murder inquest of Cheryl Crane (movie idol Lana Turner’s daughter). The public was fixated on the life of Turner who was abused by her over-sized mobster boyfriend, Johnny Stomponato — until, that is, the 14-year-old Crane plunged a 10-inch carving knife into his chest. Today we have Jackson. With an audience of 30 million television viewers, Jackson’s verdict was the most popular thing the singer has produced in years.

Most celebrity trials have a notable common element: They result in acquittals. But to suggest that acquittal is the inevitable outcome ignores the fact that many celebrities plead guilty to avoid damaging trials. Despite his acquittal, Arbuckle was ruined from the trial exposure, while celebrities such as Robert Mitchum and Hugh Grant pleaded guilty and went on to leading roles. Indeed, some of the best-known accused celebrities never faced a jury: Mitchum (marijuana possession) ; Pee-wee Herman (indecent exposure); Robert Downey Jr. (drug possession); Christian Slater (assault and drug possession); Paula Poundstone (child endangerment); Marv Albert (battery); Hugh Grant (solicitation).

The high acquittal rate also reflects the fact that celebrity trials present unique elements that are ignored at the peril of either the prosecution or the defense. For criminal defense attorneys, celebrity trials can seem like a parallel universe where conventional rules and tactics are reversed.

Take, for example, the general disinclination to put a defendant on the stand. In most cases, the risks are simply too high for a defendant. For celebrities, however, the failure to take the stand can come at a much higher cost, as shown by Martha Stewart, who served time for obstructing an investigation into her sale of ImClone stock.

Prosecutors often portray celebrities as detached, abusive personalities who use people for their conspicuous consumption or enjoyment. By the end of the government’s case, Stewart looked as if she did everything short of beating her underlings with a riding crop — an image that could only be changed by Stewart herself.

Stewart might have been saved if she had taken the stand and shown the one thing that she had resisted her whole life: vulnerability. If she had simply said that she was afraid and confused, it might have saved her. Yet, her complex personality seemed incapable of such a simple defense.

To make things worse, her legal team gave the jury a parade of celebrity friends who sat behind Stewart in public showings of support. She made it abundantly clear that the jurors were not her peers in that courtroom — Rosie O’Donnell, Bill Cosby, Brian Dennehy and the rest of her famous friends were her true peers. Her conviction was sealed because her defense played by the conventional trial handbook and refused to put her on the stand.

Ironically, celebrities are often ideally suited for testimony. They are not only natural actors but, like Stewart, people who actively market themselves to the public. For example, when Errol Flynn testified at his 1942 statutory rape trial, he turned the tide after the introduction of truly damning evidence. The swashbuckling actor was well known as preferring underage girls whom he called his “San Quentin Quails” or JBs (for jail bait).

Likewise, Arbuckle, Crane and Charlie Chaplin all testified and were exonerated. Conversely, when actress Winona Ryder faced shoplifting charges in 2002, she did not take the stand and was convicted.

There are exceptions to this rule. Celebrity defendants O.J. Simpson and Robert Blake were both accused of killing their current or former spouses (as well as a friend in Simpson’s case). Yet, neither could testify without risking that suppressed or excluded evidence could be introduced into the trial. Their acquittals stemmed from other flaws in the cases.

In the case of Jackson, no rational lawyer would have put the notoriously unstable singer on the stand. Wearing pajama bottoms and surrounded by his battalion-size entourage, Jackson could barely hold it together sitting behind the defense table.

For celebrities, the best defense is often offense: putting the accuser on trial. While used in conventional trials with mixed success, this defense has far greater resonance and success in celebrity trials. Jurors tend to be skeptical of people who flutter around celebrities.

In perhaps the most vicious example, Flynn’s lawyers played on his reputation as a rake and attacked the two accusers — Betty Hansen, 17, and Peggy LaRue Satterlee, 15 — as under-aged sirens. The revelation at trial that Satterlee had had a previous affair and later an abortion was all Flynn needed to secure acquittal.

Likewise, Arbuckle’s attorneys attacked Rappe as a woman of questionable morals. Chaplin’s lawyers had it easier in portraying his alleged victim as not only unstable but the real “little tramp”: Actress Joan Barry had allegedly broken into his home with a gun to force a reunion. He testified and was acquitted of the charge of transporting Barry across state lines for sex in violation of the 1910 Mann Act.

In some cases, a victim walks right out of central casting for a celebrity defense. Robert Blake’s wife was a notorious grifter and pornographer. After 20 years of defrauding people, particularly lonely men, you could throw a stick on any corner in LA and hit five people who wanted to kill Bonnie Lee Bakely.

Jackson’s lawyers showed that, if you do not have a grifter victim, an alleged victim’s grifter mother will do. On the stand, the mother admitted that she had made false allegations in a prior lawsuit and neatly fit the profile of a conniving, predatory personality. Even after she pleaded with the jury “don’t judge me,” they seemed not only to judge but to convict her. Indeed, jurors had more to say about her than Jackson after the verdict, including her nasty habit of snapping her fingers at them.

Celebrities can present themselves as open targets for people who want to extort money through false allegations. In Jackson’s case, it was the perfect model of the clueless meeting the unscrupulous. And it provided a narrative that any jury would have appreciated.

The prosecution often offers something more complex and fluid — and ultimately less salient for a jury. In the Simpson trial, the prosecutors fumbled their narrative out of pure incompetence. By putting police officer Mark Fuhrman on the stand, they handed the late Johnnie Cochran the ready-made story of racist cops bent on making a case against an African American celebrity.

Despite the largely circumstantial evidence, the prosecution had a true shot at conviction with Jackson. There are certain celebrities who fit the model of the Marquis de Sade defendant: a personality who has allowed his unrestrained lifestyle and tastes to mutate into perverse passions. Jackson’s bizarre, kabuki-like appearance gave testimony to his alleged perversities. The same can be said for famous “Wall of Sound” rock music producer Phil Spector, whose violent tastes and creepy hairdo seem to scream suspect for his September murder trial.

None of this means the system is incapable of handling celebrity cases. Justice was done with Jackson, who faced a weak circumstantial case and a weak prosecution. As for Simpson, the case was lost by a breathtakingly incompetent prosecution team.

These were not cases of “celebrity justice,” just celebrity trials and conventional justice. In both cases, the prosecution failed to take advantage of the peculiar patterns that shape celebrity trials and played by conventional rules while the defense played by celebrity rules. It was no contest.