Thursday, May 17, 2018
Innocent Infants
Alfred, Lord Tennyson, In Memoriam.. . .An infant crying in the night
An infant crying for the light:
And with no language but a cry.
There is a certain amount of confusion about the reason for the practice, and even more confusion about whether the activity it is seeking to prevent is criminal or not. But one thing is absolutely clear. It is not the same as what the Nazis did in the 1930s and 1940s, when families were being taken to concentration camps. When arriving at the camps, children were sometimes taken from their parents and, in many cases following the separation, would never again see their parents. The families arriving at the camps were not illegal immigrants. They were citizens of the countries in which they lived.
The Trumpsters are dealing with families that are neither citizens nor residents of the United States. The children they are dealing with are newly arrived in the United States. They are with parents who have arrived illegally and are seeking asylum. Like the Nazis, Trumpsters make no attempt to deny what they are doing. But whereas the Nazis had no need to justify what they were doing, the Trumpsters know that to avoid criticism, they must justify their actions.
According to a recent story in the New York Times, since October 2016, more than 700 children have been taken from those illegally entering the United States. In most cases the adults accompanying the children have claimed to be the parents of the children. Of the children taken, more than 100 children were less than 4 years of age. It is hard on all families but, for obvious reasons, especially hard when children of that age are separated from their parents and placed in strange surroundings, surrounded by strangers. The story in the New York Times describes what happened to a young woman named Mirian who crossed the board with her 18-month old son on February 20, 2018. When apprehended, she was instructed to place her son in the back seat of a government vehicle, and the son was driven away, both he and his mother crying as they parted. The 18-month old child was placed in a facility in San Antonio, Texas, and the only word Mirian has received is from a case worker who told Mirian that her son “cried all the time” after he arrived at the facility.
In a speech in Scottsdale, Arizona on May 7, 2018, Attorney General Jeff Sessions, explained: “I have put in place a zero tolerance policy for our Southwest border. If you cross our border illegally, we will prosecute you. It’s that simple.” He also explained how parents could avoid being separated from their children: “Don’t bring them across the border.”
The policy of separating children from parents seems harsh until it is explained by Trumpsters, and since early May, two Trumpsters have made public statements justifying the practice of separating children from parents. Both were broadcast on National Public Radio, the first on May 10, 2018 and the second on May 11, 2018. The first was an interview was given by Homeland Security Secretary, Kirstjen Nielsen.
During her interview, Secretary Nielsen said that people who enter the country illegally are committing crimes and are criminals. In commenting on what, to civilized people seems like the inhumane practice of separating children, including infants, from parents, she offered an explanation. She said: “If you as a parent break into a house you will be incarcerated by police and thereby separated from your family. We’re doing the same thing at the border. . . . If you have a family and you commit a crime the police do not not put you in jail because you have a family. They . . . incarcerate you.” Later in the interview she responded to the suggestion that separating children from parents at the border created a state of terror. She said that argument was the same as saying that separating domestic criminals from families when they are apprehended was terror. She explained: “In the United States we call that law enforcement. We call that protecting our communities and our children. That’s what we are doing.” White House Chief of Staff, John Kelly, also defended the practice of arresting illegal immigrants. He described it somewhat differently from Ms. Nielsen. In Mr. Kelly’s discussion with NPR, he said: “people that move illegally into the United States are not bad people. They’re not criminals.” That undercuts Ms. Nielsen’s justification for separating children from parents. If Mr. Kelly is correct, comparing a woman seeking asylum to escape a desperate situation in her country of origin, with someone who breaks and enters a house or, perhaps, robs a bank, is nonsensical. Someone should tell Secretary Nielsen. Not that it would make much difference. The Nazis would not have stopped doing what they were doing if someone had told them it was creating a state of terror. Neither will the Trumpsters.
Thursday, May 3, 2018
Missouri and the Death Penalty
“We all of course, would like to think that we are ‘moving down the road toward human decency’ . . . Within the confines of this judicial proceeding, however, we have no way of knowing in which direction that road lies.”
—William Rehnquist, Rummel v. Estelle (1980)
Missouri is back. It encounters the death penalty repeatedly, and its encounters serve as reminders of what a great country we live in. We are willing to endlessly discuss and litigate how best to implement the death penalty. One of our greatest attributes is that in proper circumstances (and before an execution takes place), the person with the greatest interest in the execution procedure is permitted to explain to a court why the method selected by the executioner is less desirable than the method the participant proposes. The case of Bucklew v. Precythe is a case in point. Mr. Bucklew is the plaintiff in that case.
Mr. Buklew engaged in some heinous acts, and following his arrest, was convicted of murder, kidnapping, and rape. His trial and conviction and appeals were in Missouri, and Missouri is one of the states that continues to use the death penalty as a form of punishment. For obvious reasons, Mr. Bucklew had a vested interest in understanding how the death penalty and he were going to be executed. His interest was particularly keen, because he has a unique medical condition that he and his doctors believe would result in his suffering cruel and unusual pain and suffering if he were to be executed using Missouri’s lethal injection protocol. If his claim that the procedure would subject him to cruel and unusual punishment because of his medical condition is in fact true, his execution would violate the pertinent provisions of the Eighth and Fourteenth Amendments to the United States Constitution. Having lost all appeals at the state level, Mr. Bucklew went to the Federal Court of Appeals for the Eight Circuit.
In considering Mr. Bucklew’s appeal, that court engaged in an extremely careful analysis of what Mr. Bucklew must demonstrate in order to compel the state to execute him in the manner he has selected, rather than the method selected by the state. To succeed in his efforts, the Court said, Mr. Bucklew must: “establish that the method [proposed by the state] presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers.” (The Court does not discuss what kind of “serious illness” can befall someone who is being executed, since it would seem to those unfamiliar with the process, that if one is dead within a few minutes following the beginning of the procedure, “serious illness” would not be a real problem. It is also unclear what is meant by “imminent dangers” as used in the sentence just quoted.) The Court goes on to say, quoting from an earlier case, that in addition to satisfying those criteria, the prospective participant in the execution must also show that the proposed consequences of the execution procedure are “severe in relation to the pain and suffering that is accepted as inherent in any method of execution.” Further, and again quoting from an earlier case, the Court says the challenger must: “identify an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.” That seems particularly compassionate, since it demonstrates that an execution may become a collaborative effort between the person being executed, and the executioner, if the person being executed proposes a method permitted under the applicable state law. In addition to lethal injection, Missouri permits the imposition of death on someone who has received a death sentence, by use of nitrogen gas. Mr. Bucklew asserted that in his particular case, with his medical condition, the executioner should kill him with nitrogen gas rather than lethal injection. (To avoid any confusion, it should be noted that the nitrogen gas (N) used in executions, differs from N20 known as “laughing gas.” A person exposed to N in the execution chamber would die from asphyxiation rather than laughing. However, some studies suggest death from nitrogen may, in fact, be mildly euphoric.)
Mr. Bucklew’s case demonstrates that as in any collaborative effort, there are limits. Missouri resisted Mr. Bucklew’s efforts to persuade the Court of Appeals that he should be executed by nitrogen gas, and the Court of Appeals agreed with the state. In affirming the ruling of the trial court that lethal injection was appropriate for Mr. Bucklew, the Court said: “the [trial] court held that Bucklew failed to provide adequate evidence that his alternative method of execution-lethal nitrogen gas- was a ‘feasible, readily implemented’ alternative that would ‘in fact significantly reduce a substantial risk of severe pain’ as compared to lethal injection.” It said Bucklew “failed to establish that lethal injection, as applied to him, constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments.”
On April 30, 2018, the United States Supreme Court announced that it would consider Mr. Bucklew’s claims in its upcoming term. The country will join Mr. Bucklew in eagerly awaiting the decision that will inform him (and us), of what method Missouri may use in executing him.
Thursday, April 26, 2018
Kobach Redux
Do not veil the truth with falsehood, nor conceal the truth knowingly.
—The Koran, Chapter 1
Maybe Kansas deserves Kris Kobach. He is running to become the next governor of Kansas. He looks great on paper. He graduated with top honors from Harvard, attended Oxford where he got an MA and PhD in Politics, and from there went on to graduate from Yale Law School and become a lawyer. A paper trail, as good as it is, means little when considering Mr. Kobach. His actions since graduation belie his academic accomplishments. To appreciate his most recent brush with the law and a federal judge who held him in contempt of court, it helps to recall two of his unfortunate encounters with the truth, insofar as they pertain to his perception that there is rampant voter fraud in the United States.
In 2013 the Kansas legislature enacted the Secure and Fair Elections Law that imposed proof of citizenship requirements on anyone seeking to register to vote. Mr. Kobach believed the Kansas statute was necessary because, as he repeatedly said, there was widespread voter fraud in Kansas. Federal District Court, Judge Julie Robinson, who heard the case when an action was brought to prevent the act from being enforced in 2016, disagreed with Mr. Kobach. She not only ruled that proof of citizenship could not be required of those registering to vote, but ordered Mr. Kobach to take steps to make sure those affected by the statute were notified of their right to vote. In her order she also commented on Mr. Kobach’s concerns about wide-spread voter fraud. She said: “There is evidence of only three instances where noncitizens actually voted in a federal election between 1995 and 2013.” She went on to observe that during that same period, about 14 non-citizens attempted to register to vote.
The steps Mr. Kobach agreed to take pursuant to Judge Robinson’s order that he notify those who had sought unsuccessfully to register, were very specific. Some months later, but before the 2016 election took place, it was brought to the Court’s attention that Mr. Kobach had not followed through on his promises to the Court. A hearing was scheduled in which Mr. Kobach faced the prospect of being cited for contempt for failing to obey the court’s order. A day before it was to take place, Mr. Kobach agreed that his office would do what he had already promised but failed to do, and the contempt hearing was vacated. That, for a time, put the Kansas case to the side. It was not, however, the end of Mr. Kobach’s travails.
On May 11, 2017, Mr. Trump created the Presidential Advisory Committee on Election Integrity. Its chair was Vice-President Michael Pence. Mr. Kobach was second in command. In a puffed up statement about his belief in eliminating voter fraud, he said: “As the chief election officer of a state, ensuring the integrity of elections is my number one priority. The work of this commission will assist all state elections officers in understanding and addressing the problem of voter fraud.” His ability to detect voter fraud was soon demonstrated. After a short time on the Commission (it was dissolved less than 9 months after it was created) Mr. Kobach proudly announced that he had discovered 5,511 unregistered voters who had voted in New Hampshire in the 2016 election. As it turned out, his discovery did not prove there was voter fraud. It proved that Mr. Kobach did not understand the New Hampshire statute that prescribed the procedures for registering to vote. The 5,511 voters he identified as ineligible to vote, were in fact all eligible.
The Commission on which Mr. Kobach served was disbanded by Mr. Trump on January 3, 2018. Thereafter, Mr. Kobach returned to Kansas where further legal proceedings awaited him. Those proceedings gave him an opportunity to explain to Judge Robinson why he had failed to obey the orders she had given him about sending notification to those who had not been permitted to register. Following that hearing, Judge Robinson issued a lengthy ruling in which she found Mr. Kobach to be in contempt of court. In her ruling she said Mr. Kobach’s explanation of why notice was not sent to prospective voters waas “disingenuous.” She observed that Mr. Kobach “has a history of noncompliance with the preliminary injunction order. . . He not only willfully failed to comply with the preliminary injunction for five months, but then only complied . . . upon the threat of contempt.” Continuing her observations about Mr. Kobach she observed: “The Court is troubled by [Kobach’s] failing to ensure compliance over an issue that he explicitly represented to the Court had been accomplished.”
After the hearing had taken place, Mr. Kobach commented on the fact that Judge Robinson found him to be in contempt. In an interview with Breitbart News, he said her finding was “ridiculous.”
Mr. Kobach hopes to become Kansas’s next governor. Voters in that state will have the opportunity to decide if Judge Robinson’s finding is ridiculous. They may conclude that it would be more ridiculous to vote into the governor’s office a man of Kris Kobach’s limited integrity.