"Pietro told the court that he masturbated in the open only 'occasionally'."

Crumb_onan

This blog has been your go-to source for cutting-edge reports on Germany's emerging culture of public masturbation, one of the most stimulating cultural enrichments the 2015 migrant wave brought us.

Italy has adopted a brand-new policy model to address this crisis-tunity: If you can't beat 'em, join 'em. Or maybe if you can beat 'em, join 'em. Alright, no more crude puns, cut to the news:

Masturbating in public, if it's out of the sight of minors, is not an illegal act, the Supreme Court of Italy has ruled in a case concerning a 69-year-old man who was caught masturbating on a bench in front of a group of college students.

A lower court had convicted the man, identified only as Pietro L, for performing the act in front of students on the University of Catania campus in southern Italy, sentencing him to three months in prison and ordering him to pay a fine of $3,600, according to documents filed with Supreme Court, CNN reports.

The highest court, La Corte di Cassazione, said in its ruling last week, that public masturbation out of the presence of minors is no longer a criminal act as the law had been amended last year.

According to the amended law, masturbation done in the presence of a minor is punishable with imprisonment of up to four-and-a-half years. However, the act might incurr an administrative fine even if not witnessed by a minor. The apex court has therefore sent Pietro's case back to local courts in Catania, and he will still be fined between $4,000 and $6,000.

Pietro told the court that he masturbated in the open only "occasionally," arguing that he was caught doing the act in "reduced visibility" around dusk in May 2015 and therefore it would have been hard for people to see him, according to Albuquerque Express.

The Supreme Court's decision, which was delivered in June but disclosed only last week, was criticized by opposition politicians in that country.

"The Renzi government has never given equal opportunities much notice, but to save from the prison cells people who commit obscene acts in front of women is really unjustifiable," Elvira Savino, a lawmaker from the Forza Italia Party, was quoted as saying. "The government's law is an invitation to every maniac to molest women."

In 2013, a court in Sweden also ruled that a man who masturbated publicly on a beach in Stockholm did not commit a criminal offense because he was not "pleasuring himself towards a specific person."

"For this to be a criminal offence it's required that the sexual molestation was directed towards one or more people. I think the court's judgement is reasonable," public prosecutor Olof Vrethammar responded at the time, according to The Independent. "The district court has made a judgment on this case. With that we can conclude that it is okay to masturbate on the beach."


Bleg: Has Angela Merkel Ever Criticized the German Justice System?

At a conference in Vienna, I made a statement that might well turn out to be bullshit, as is often the case with me. What I said was:

"In all her years as Chancellor of Germany, Angela Merkel has never made a public statement in which she has (1) called for reform of the German criminal justice system or (2) criticized its unfair treatment of ethnic minorities."

I certainly can't remember her ever doing such a thing. In fact, I can't remember her ever saying anything at all about the German criminal justice system, except for platitudes congratulating judges and cops for their selfless service, etc.

The point was to contrast her with Obama, who has made countless such statements. And to make the point, which I do over and over on this blog: Europeans who obsess on the flaws, real or imagined, of the U.S. criminal justice system generally have no idea how their own system works, and blissfully presume it works just fine. 


Sanity in the Extreme

So, the Alternative for Germany party convention (g) rejected a platform plank that would have declared that Germany is "not a country of immigrants" and instead approved the following: "Immigrants who have relevant qualifications for the labor market and who demonstrate a high degree of willingness to integrate are welcome here."

Whenever the AfD is criticized as extreme and xenophobic in the coming years -- and it will be, constantly and unrelentingly, in a barrage of propaganda -- remember that sentence:

"Immigrants who have relevant qualifications for the labor market and who demonstrate a high degree of willingness to integrate are welcome here."

That is the party's official stance on immigration. Not only is there nothing extreme about this, this is currently the policy of the overwhelming majority of countries on the face of the earth. All countries to which a rational person might want to immigrate -- and many others -- openly and frankly say to potential immigrants: we only want you if you can contribute to our society. Otherwise, we won't let you in. Our country's immigration policy puts the interests of existing citizens first, and there is nothing shameful, wrong, or even questionable about that.

Noted racist authoritarian backwater Canada, on an official government website, lists the factors it uses for its own immigration point system:

Screenshot 2016-05-01 15.07.14

In Canada, you have to score at least 67 points. It's only a slight exaggeration to say that current German immigration policy, driven by a bizarre form of cultural masochism, is drawing mainly people who score less than 20 points on this scale. Many less than 10. Many less than 5.

It's hard to know where to place on this scale the tens of thousands of (often illiterate) 2015 immigrants to Germany who have already committed serious crimes. They are, after all, not only not benefiting Germany in any way, they are actively harming the country. Perhaps we need to expand the scale below 0 to capture Germany's current immigration policy.

-20? -50?

So remember, whenever les bien-pensants accuse the AfD of xenophobia, they are condemning the current immigration policies of virtually every developed nation.

That may give you a new perspective on who the extremists are.


Violent Crime is More Common in Europe than the USA

An interesting 2011 paper looks at crime rates since 1970 in the United States and 8 major European countries. The authors, mostly Italian, come to a conclusion that will surprise many people: Europe has become more dangerous than the United States: 

In 1970 the aggregate crime rate in the seven European countries we consider was 63% of the corresponding US figure, but by 2007 it was 85% higher than in the United States. This striking reversal results from a steady increase in the total crime rate in Europe during the last 40 years, and the decline in the US rate after 1990. The reversal of misfortunes is also observed for property and violent crimes.

A few charts:

Crime Rates in the USA and Europe Violent crimes usa europe
An important caveat is that these numbers exclude homicide. The US homicide rate is currently 3-4 times higher than in most European countries. As I've pointed out, this fact is due mostly to two factors: the extremely high rate of black-on-black homicide in the US (52% of all persons arrested in the USA for homicide are black), and of course the wide prevalence of guns in the USA.

Homicide is actually not terribly relevant to public safety. It's much more rare than all other violent crimes, and is overwhelmingly concentrated among certain subgroups. Most homicides occur within an existing relationship, and many others occur among criminal subgroups such as gangs or drug users. The chance of an ordinary European or American being murdered by a stranger in a crime of opportunity is infinitesimally small.

As for general background violence in society, Europe is, statistically, more dangerous. It's interesting to speculate about why this might be. I suspect mass hooligan confrontations between football fans probably plays some rule: Every weekend there are dozens of unruly confrontations between rival football fans which may generate dozens of arrests at once. But still, these have been going on for quite a while.

The authors of the study perform statistical analyses to try to determine why European crime has increased. They do not identify immigration as a significant factor, although they say this is mainly for lack of data. The one factor they do identify as significant is length of incarceration. They argue that Europe's comparatively lenient criminal-sentencing regimes help to explain the crime increase. They find that length of criminal sentence does have an effect on crime rates, and suggest that Europe should increase prison sentences.

At the end of the day, the universal rule for all developed societies holds: crime is concentrated among poor and minority areas, and if you avoid these, your chances of being the victim of a violent crime are minimal. But still, anyone who praises Europe as safer than the USA needs to update their stereotypes.


Why is German Immigration Policy the Solution to Albania's Domestic Problems?

I have already pointed out that Elisabeth Raether's front-page article in this week's Die Zeit contains a factual error. But what about the rest of her argument?

Let me sumarize it. Raether points out that the Federal Migration Ministry has gotten 5,000 applications for asylum from Albanian migrants since July, and has not granted a single one. As we know by now, since Die Zeit apparently doesn't fact-check its articles, we can't really take this for granted, but let's assume it is accurate.

Raether notes that at the upcoming migration summit, Germany may declare Albania a 'secure country of origin,' which would make it easier to process asylum applications and deport those who have no grounds for asylum. She argues that this should not happen, because Albania has 'deficiencies in the rule of law', which after all explains why it has yet to be accepted into the EU. She argues that the 'biggest problem' for Albanian women is the Kanun, an orally-transmitted body of customary law that 'for simplicity's sake' can be called Albanian sharia. According to Raether, under Kanun law, women are treated as 'nothing more than a tube through which goods can be transported.' Important components of Kanun, she states, include 'blood revenge, forced marriage, and taking the law into your own hands'.

So far, Raether has not provided no citations to proof for any of these assertions.

She then moves on to state that Albania had no laws against domestic violence until 2012. This is false. But even under this (not-so-new) law, Raether claims, there are rarely consequences for wrongdoers, since women frequently withdraw their request for protective orders. The Albanian government does not adequately protect its citizens from human traffickers, and Albanian women are being forced into prostitution. So many female fetuses are being aborted that the sex ratio of society has seen lasting changes.

Still no proof for any of these assertions. Nor does she provide numbers to quantify how serious a problem human trafficking or domestic violence is in Albania.

Finally, Raether gives a source for these assertions: We should 'listen to Albanian women' applying for asylum. She claims that Belgium did so, and decided to revoke Albania's designation as a secure country of origin and even before that granted 17.2% of asylum applications. Germany already recognizes threats of violence from family members as a valid ground for asylum, but is not taking this responsibility seriously.

So that's the argument. Let me point out the problems with it.

First, uncorroborated first-person narratives from persons currently involved in a legal proceeding in which they have a strong incentive to exaggerate threats to them are not reliable evidence, period. Saying that immigration policy should be based on trusting these narratives is like saying that you should judge a criminal-justice system by how many prison inmates claim they are innocent.

Second, Raether says we can't consider Albania a safe country of origin because it's not in the EU yet. But of course there is no either-or here, virtually all countries in the world are in the category of neither EU members nor unsafe countries of origin. There are literally hundreds of reasons a country might not be a candidate for EU membership (infrastructure, fiscal policy, foreign policy) that have nothing to do with whether it's a safe place to live.

Raether says the main reason Albania isn't in the EU yet are problems with the rule of law. Although she doesn't cite any proof of this, it could well be true. The obvious response is that Albania should improve its performance in this regard. Should the European Commission help? Perhaps so. And in fact it is: By granting Albania € 320 million in assistance from 2014 to 2020 devoted to improving governance, democracy, and the rule of law.

€ 320 million.

And that's only half of the entire IPA (Instrument for Pre-accession Assistance) II EC spending package for Albania in 2014-2020, which has a total of € 650 million. And as the name indicates, IPA II is the successor to IPA I, another huge EC aid package which ran from 2007 to 2013.

Now is all of this money going to effective programs? Of course not, we all know there is some corruption and inefficiency in government aid packages. But € 320 million is a lot of money. And Albania has made significant progress in recent years. Of course, that progress is slow, and politicization and corruption of the public sector (pdf) are still big problems, as they are for most countries in that part of the world. And there is a distorted sex ratio (pdf) in Albania. And there are still some blood feuds in Albania, a favorite subject for the Western media.

But the key question is this: why is German immigration policy a good response to Albania's domestic deficiencies? The existence of an informal quasi-feudal code of conduct among a small proportion of Albanians is not Germany's problem. The weak prosecution of alleged domestic abuse in Albania (we're not told exactly how prevalent it is) is not Germany's problem. The preference of Albanians for male children is not Germany's problem. The continuing existence of corruption in Albanian domestic politics is not Germany's problem. These problems exist to some extent in dozens of countries all over the globe.

In fact, these problems exist in EU countries. A recent study documented domestic violence all over Europe (g) and identified what the authors consider to be inadequate legal protections for victims, including in Germany. In fact, Germany itself (g) does not have a special section of its criminal code directly addressing domestic violence. Germany, like Albania before 2007, prosecutes abusers under normal criminal-code provisions that apply to everyone, such as assault, insult, etc. Besides getting the date wrong, Raether never explains why Albania should be condemned for waiting too long to pass a law that Germany has yet to see the need for.

And in any case, the phenomenon of women withdrawing domestic-violence complaints and men getting off with light punishments is universal, also in many EU countries. This problem indicates a need for better enforcement methods. It does not indicate that the entire country is unsafe.

In any case, Albanian problems are all overwhelmingly internal to Albania, just as India's skewed sex ration is internal to India. If they are ever solved, it will be by cultural changes within Albania. The outside world can perhaps play a limited role in encouraging these changes. Which is precisely what the outside world is doing right now, by providing billions of euros in assistance and massive outside diplomatic pressure to Albania. I think that approach is likely to be a lot more effective than tinkering with Germany's immigration laws.


German Prisons 'Astonish' American Visitors

A delegation of Americans just visited several German prisons this year and came back impressed:

Earlier this summer, we led a delegation of people concerned about the United States criminal justice system to visit some prisons in Germany and observe their conditions. What we saw was astonishing.

The men serving time wore their own clothes, not prison uniforms. When entering their cells, they slipped out of their sneakers and into slippers. They lived one person per cell. Each cell was bright with natural light, decorated with personalized items such as wall hangings, plants, family photos and colorful linens brought from home. Each cell also had its own bathroom separate from the sleeping area and a phone to call home with. The men had access to communal kitchens, with the utensils a regular kitchen would have, where they could cook fresh food purchased with wages earned in vocational programs.

...

But for all the signs of progress, truly transformative change in the United States will require us to fundamentally rethink values. How do we move from a system whose core value is retribution to one that prioritizes accountability and rehabilitation? In Germany we saw a potential model: a system that is premised on the protection of human dignity and the idea that the aim of incarceration is to prepare prisoners to lead socially responsible lives, free of crime, upon release.

...

The process of training and hiring corrections officers is more demanding in Germany. Whereas the American corrections leaders in our delegation described labor shortages and training regimes of just a few months, in the German state of Mecklenburg-Western Pomerania, less than 10 percent of those who applied to be corrections officers from 2011 to 2015 were accepted to the two-year training program. This seems to produce results: In one prison we visited, there were no recorded assaults between inmates or on staff members from 2013 to 2014.

...

In Germany, we found that respect for human dignity provides palpable guidance to those who run its prisons. Through court-imposed rules, staff training and a shared mission, dignity is more than legal abstraction.

The question to ask is whether we can learn something from a country that has learned from its own terrible legacy — the Holocaust — with an impressive commitment to promoting human dignity, especially for those in prison. This principle resonates, though still too dimly at the moment, with bedrock American values.

At conferences the question often comes up whether the dedication to 'inviolable' human dignity that starts the German constitution has real meaning. The prison example shows it does, in my opinion. Nevertheless, many English and American lawyers claim that human dignity is not a meaningful legal value. Justice Thomas, a black conservative justice who voted against gay marriage, explained:

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

One American law professor even cautioned readers concerning the 'danger' of human dignity:

The word dignity eludes narrow definition, or for that matter, any generally agreed upon definition. The Court itself has not provided a clear definition of dignity. One scholar, William A. Parent, declares, “[D]ignity is to possess the right not to be arbitrarily and therefore unjustly disparaged as a person.” In another article on “the Jurisprudence of Dignity,” Leslie Meltzer Henry writes that there is no single definition, but that dignity includes various conceptions including institutional status, equality, liberty, individual integrity, and collective virtue. She concludes, “dignity’s conceptions and functions are dynamic and context-driven.”

If dignity is defined so elastically, then conservatives judges might invoke it to strike down not only gun-control laws, but also other progressive legislation. Libertarian groups invoked the “sweet-mystery-of-life” my [sic] language in Casey to argue that the Obamacare healthcare mandate unconstitutionally violated the dignity and autonomy of Americans by forcing them to buy health insurance. In the future, cigarette smokers might argue that anti-smoking bans violate their ability to create an individual identity. And conservative Christian wedding photographers could claim that anti-discrimination laws compelling them to photograph gay weddings violate their dignity and ability to define themselves as conservative Christians. What courts would do when confronted with the clashing dignitary rights of the religious wedding photographer and the gay couple, or the hunter and the victim of gun violence, is anyone’s guess, because dignity is such an abstract concept that its boundaries are difficult to discern.

I find the different attitude toward 'dignity' pretty interesting and have written about it in a few contexts, but I'll spare you the boring details. It's the kind of issue that, to do it justice, requires you to lay down a bunch of ground rules, collect historical examples, and carefully delimit your claims with a bunch of caveats. In other words, to write like a boring academic. If that doesn't deter you, head on over to my academia.edu page. But don't say I didn't warn you. 


You Cannot Film the Police in Germany

The German press is fascinated and disturbed by videos of American police using excessive force, like the one above.

Why do these videos exist? Because in the United States, it is every citizens' constitutional right to film the police doing their job unless they are interfering with police work:

Taking photographs and video of things that are plainly visible in public spaces is a constitutional right — and that includes the outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties.

Police often tell people to stop filming, but those cops don't know the law. Unless the videos are obscene, you can post those videos to the Internet with full constitutional protection, and that's exactly what people do. They are then played over and over on German websites.

Can you film cops arresting people in Germany and then post that video straight to the Internet? The short answer is: absolutely not. The somewhat longer answer is: Sure, you can do it, but you could well be sued for tens of thousands of Euro, and have to wait for a court decision about whether the public interest in publishing the video was stronger than the privacy rights of the people displayed.

The crucial background to know about this issue is that German law gives people powerful protections over the use of their own image and voice and the protection of their privacy -- legal protections which most Germans appreciate, and which don't exist to anywhere near the same extent in the US. The question then becomes whether police officers doing their jobs in public enjoy these same protections. Many German courts have held that they do.  

Marvin Oppong, a journalist for the 'torial' (g) blog in Germany who wanted to film his own questioning by police decided to look into the matter in detail. He interviewed several lawyers nad journalists. Here's a summary of what he learned:

  • Can you take pictures of the police? German courts are all over the place on this issue. Some say this is basically allowed in public spaces. It also depends on where. Inside buildings such as train stations you may be prohibited from doing so because of station rules. According to other decisions, the police can also request that you delete the photos or promise not to distribute them in any way or they will sue civilly. 
  • Can you video record your own encounters with the police? Yes, unless it interferes with their work. However, you may face civil or criminal liability if you distribute the results in any way without the officers' consent, since they have a right to control the distribution of their own image. Recording their voices is only permissible in a 'completely open and public' situation. If that is not the case, then simply recording their voices is actually a crime bringing up to three years' imprisonment. You read that right: if the situation is not deemed public (whatever that means), merely recording someone's spoken words is itself a crime. If the policeman knows you are recording his voice and doesn't object, that may be a defense. 
  • Can you publish photos and videos of a police encounter on the Internet? No: German courts have held that publishing videos of a police officer's conduct on the internet creates a 'pillorying' effect that violates the police officer's right to the protection of his personality (Persönlichkeitsrecht in German). This is so even though you are filming the officer doing his or her job in public. You may be able to publish general photos of public events, but a photo that clearly focuses in on one officer will violate that officer's right to control over the distribution of their own image. Which means you will need the officer's permission to publish it.
  • Can police ask you to identify yourself if they see you filming them? Basically, yes. They can also bring you to the police station for questioning if you don't have any personal ID with you.
  • Are the rules different for journalists? Possibly. If they are filming an incident of public importance, they may be able to claim that their right to do their job outweighs the officers' rights.

So, to sum up: if you are a private citizen and see German police officers engaging in questionable conduct in public and post a video of that in the Internet -- as Americans do hundreds of times every day -- you will enter a legal minefield of contradictory court precedents. You will probably expose yourself to tens of thousands of euros in damages as well as possible criminal prosecution. Your only hope is if a court, in your specific case, finds that the public interest served by your publishing the video outweighed all of the restrictions German law places on taping and photographing people. Even police officers doing their job in public.


Projection and Discrimination

The reason I'm posting a lot about criminal justice stats recently is first because I find it interesting but also because I'm working on a piece about German (and perhaps also French) coverage of crime in the USA. 

Specifically, and not to put too fine a point on it: (1) the fact that German reporters, out of ignorance or prejudice, use bogus statistics to exaggerate claims of discrimination in the American justice system; and (2) the reason for this is projection: ("a theory in psychology in which humans defend themselves against unpleasant impulses by denying their existence in themselves, while attributing them to others. For example, a person who is rude may constantly accuse other people of being rude.").

Specifically, the thesis is that German and French journalists are (whether consciously or not) distracting their readers from the problems in their own criminal justice systems by projecting discrimination onto the USA. I don't know, that formulation's pretty edgy, but sometimes edgy is fun!

Still in the research phase, but I'll let you know if I can get a German press outlet to publish it.


The Necessary Context on Black Crime Rates

M6227a1f3(source: U.S. Centers for Disease Control)

The mere fact that blacks are overrepresented in American prisons relative to the population does not even come close to proving the American justice system is racist, because:

One of the most well-known statistics pertaining to the criminal justice system is that a disproportionate amount of African American males are arrested, convicted, and incarcerated. Although the precise estimates vary across studies and reports, in general African American males are arrested at a rate (relative to their proportion of the population) several times that of White males, with these racial differences being quite robust across a wide range of offenses, including property offenses and drug-related offenses (Cooper, Fox, & Rodriguez, 2012; Peterson, 2012; Sampson & Wilson, 2005; Steffensmeier, Feldmeyer, Harris, & Ulmer, 2011; Tonry, 2010). This disparity is even more pronounced when examining the most serious and violent types of criminal acts (Chan, Myers, & Heide, 2010; D’Alessio & Stolzenberg, 2003; DeLisi, Dooley, & Beaver, 2007; Gabbidon, Higgins, & Potter, 2011; Tapia, 2010; Tillyer & Hartley, 2010; Tonry, 2010). In short, no matter how the data are cut, no serious criminologist, sociologist or any other academician interested in the topic can deny that African American males are much more likely to be processed through the criminal justice system than are White males.

Where opinions differ sharply, however, is in regard to the exact mechanisms that predict disparities in criminal justice processing. While several causal pathways have been proposed, the explanation garnering the most attention from scholars is that of a racially biased justice system (Kennedy, 1997; MacDonald, 2003; Wilbanks, 1987). More specifically, the null hypothesis, so to speak, has been that of a system which unduly targets racial minorities, especially African Americans. Certainly there is evidence pertaining to the increased likelihood of African American males (in particular) being stopped, questioned, arrested and ultimately sentenced by the criminal justice system (Blumstein, 1982; Carmichael, 2010; Kennedy, 1997; Peterson, 2012; Tonry, 2010; for some dissenting evidence, however, see Franklin, 2010, as well as, Tracy, 2002).

This is the introduction to an article with the self-explanatory title: No evidence of racial discrimination in criminal justice processing: Results from the National Longitudinal Study of Adolescent Health, published in the peer-reviewed journal Personality and Individual Differences. Many commentators seek to explain higher crime rates among American blacks as a product of discriminatory enforcement, so the authors decided to look at self-reports of behavior given as part of a huge anonymous US federal study. They found that self-reporting closely tracked official crime statistics. The authors of course note that self-reporting has limitations, but they observed that (1) since the study was anonymous, participants were unlikely to be distorting their answers to influence peers, and (2) in any case, people asked to report on their own antisocial behavior consistently understate it, for reasons that should be obvious to everyone.

Nevertheless, the amount of criminal activity reported by blacks was largely in line with statistical evidence of higher proportions of blacks being processed through the justice system. I wouldn't go so far as to absolve the US criminal justice system of all discrimination, but merely citing the over-representation of one group in US prisons without this vital context is misleading and German journalists should stop doing it. Nor, for that matter, should American journalists conclude from the fact that 27% of all German prisoners are foreigners (g) that the German criminal justice system is biased.


American Law Professor Wants to Keep the Death Penalty

The perennial question from Europeans: Why does a 'civilized' nation like the USA hang on to a barbaric punishment like the death penalty? If I am in the mood, I reel off my 5-pronged answer (sometimes I miss a prong or add a few, depending on level of drunkenness).

One of those prongs is that in Europe, the entire law professoriate, and the entire educated class, is uniformly against capital punishment, with trivial exceptions. They act as elite opinion gatekeepers, making sure no pro-capital punishment arguments are ever aired in the mainstream media. Even Germany's leading tabloid, Bild, has always been against capital punishment.

Not so in the USA. Staying with the New York Times, here's an op-ed from William Baude, an assistant professor of law at the University of Chicago. He's commenting on a recent court decision, Glossip v. Gross, in which liberal Justices Breyer and Ginsburg advocated abolishing the death penalty in the USA: 

Next let’s turn to Justice Breyer, who argues that it is “highly likely” that the death penalty as a whole violates the Eighth Amendment, because it is unreliable, arbitrary, slow and rare. This argument went well beyond the specific challenge to the use of the midazolam that was the focus of the case. Rather, Justice Breyer explained that he would stop trying “to patch up the death penalty’s legal wounds one at a time” and likely bury the whole thing. Justice Breyer (whose opinion was joined here by Justice Ruth Bader Ginsburg) is the first member of the current court to call for such a radical step.

We should not be too quick to embrace Justice Breyer’s thinking. If his conclusion is something other than a personal moral intuition, it rests on deeply contested claims about the accuracy, goals and costs of the death penalty. And while Justice Breyer’s dissent advanced extensive evidence for his claims, they are nonetheless claims that are hard for a judge, even a Supreme Court justice, to resolve dispassionately. Moreover, even if those claims are proved true, the more appropriate judicial course would be to invalidate the problematic parts of the system, not the system as a whole.

If we reject the broad legal claims of both Justices Scalia and Breyer, what is left? The court’s job is to continue resolving the fact-specific claims that a given punishment is cruel and unusual, even if that means that the court must only “patch up the death penalty’s legal wounds.” And the bigger question that Justice Breyer would have us confront — whether our death penalty system is necessary or oppressive — is best left to the states and the people.

Note that Baude himself never states his own preferred position on capital punishment, except that it should be 'left to the states of the people'. A German law professor might well consider this pusillanimous, but of course you could also call it admirably restrained.