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.


Credit Where It's Due: German Law Protects Gays in the Workplace

WorkplaceDiscrimination

A few days ago I pointed out the weak provisions of the German non-discrimination law on housing discrimination. It's only fair, though, to point out that the same law does prohibit discrimination in the workplace based on sexual orientation (g). It's still very difficult to prove a case and win damages in Germany based on the AGG, but at least the principle is there.

The US Congress has tried to enact the same protections many times over in a bill called the Employment Non-Discrimination Act, but failed. You need the House of Representatives and the Senate to pass the bill, and the President to sign it. So far, all three of those stars have not yet lined up in the right constellation, so the bill is not yet law. Many states have passed laws prohibiting discrimination against gays in the workplace, but 29 states still allow it.

I suspect a federal law might actually pass in the next 5-10 years. All you would need to do is get 10-15% of Republicans to vote for it and you would have it. (You would also need a Democratic President, of course.) I can't believe I'm saying this, but I think the change on this issue has been so dramatic in the last few years that getting 10-15% of Republicans is just possible.


Gay Marriage Now the Law in All 50 States

And on a similar note to the last post, the US Supreme Court just held (pdf) that the Constitutional guarantees of equal protection and due process of law require gay marriage to be recognized in all 50 states. Leftward-drifting Catholic Republican Justice Anthony Kennedy wrote the majority opinion for a 5-4 split court, which ends:

The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

* * *

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.


Housing Discrimination There and Here

Yesterday the U.S. Supreme Court decided Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case about the Fair Housing Act, a law passed by Congress in 1968 to combat housing discrimination:

De jure residential segregation by race was declared unconstitutional almost a century ago, but its vestiges remain today, intertwined with the country’s economic and social life. Some segregated housing patterns can be traced to conditions that arose in the mid-20th century. Rapid urbanization, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation’s cities. During this time, various practices were followed, sometimes with governmental support, to encourage and maintain the separation of the races…

In April 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis, Tennessee, and the Nation faced a new urgency to resolve the social unrest in the inner cities. Congress responded by adopting the Kerner Commission’s recommendation and passing the Fair Housing Act. The statute addressed the denial of housing opportunities on the basis of “race, color, religion, or national origin.” Civil Rights Act of 1968….

The question before the court was whether the FHA can be used for claims of ‘disparate impact’ – that is policies that have the result of affecting minorities and whites differently, even though there is no proof that the policymakers’ intention was to discriminate on the basis of race. The specific case here involves a federal rent-subsidy plan (Section 8) for poor families. The plaintiffs claimed that Texas agencies were contributing to residential racial segregation by steering minority Section 8 recipients to areas that were already disproportionately minority. The Plaintiffs had no proof that this was being done intentionally, so sued under disparate impact. The Supreme Court held that since most other American anti-discrimination laws can be used in this way, so can the FHA:

Recognition of disparate impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the “removal of artificial, arbitrary, and unnecessary barriers,” not the displacement of valid governmental policies.  The FHA is not an instrument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation.

So the United States already had a nationwide law prohibiting private housing discrimination in 1968, and has interpreted both it and similar laws to cover even discrimination that occurs unintentionally.

Let’s turn to Germany. German jurists will point out that the Article 3 of the German federal constitution (the Grundgesetz) prohibits racial discrimination on the part of the state, and that this provision can, in limited circumstances, be applied to transactions between private parties (the idea of so-called Drittwirkung). In practice, however, this possibility is practically irrelevant and is rarely-used. This is one reason the EU constantly prodded Germany to adopt a comprehensive, modern anti-discrimination law. Germany resisted until finally, in 2006, it adopted what’s known as the Allgemeines Gleichbehandlungsgesetz (AGG) or Equal Treatment Law. It was originally known as the Anti-Discrimination Law, but the title had to be watered down.

So what are the housing-discrimination provisions of the AGG? Here’s a short website (g) from a law firm that explains things pretty well. The main provision outlaws discrimination by private landlords on the basis of “race, ethnic ancestry, sex, religion or worldview, disability, age, or sexual identity”. Gosh, that sounds mighty progressive, you might be saying.

But actually, there are quite a lot of exceptions! For instance, if you’re renting a portion of the residence you currently occupy, you aren’t bound by the AGG at all. Seems reasonable enough. But then we get to a rather bigger loophoole: the so-called ‘small landlord’ exception. This provides that the full terms of the AGG do not apply to any landlord who puts on the market fewer than 50 residences. If you own 49 rental properties and are thus a ‘small landlord’ (!!), you are not permitted to discriminate on the basis of race or ethnic ancestry, but you can discriminate on all the other grounds as much as you want. Only when you rent more than 50 residences does the AGG apply in full force.

But wait, there’s more! Turns out there’s a loophole even here: a landlord may refuse to rent to someone in order to preserve ‘socially stable residential population structures’ and to preserve ‘balanced cultural relations’, whatever that means. Ironically, this provision of the law sells itself as an anti-discrimination measure: to prevent large concentrations of foreigners in a certain area, a landlord can refuse to rent to foreigners who wish to come there and live. Of course, the landlord then has to subsidize the rent of the foreigners he discriminated against so they can pay four times higher rent to live in the white part of town. Oh wait, no he doesn’t.

Also, if you want to sue a landlord for damages, you must do so within a 2-month limitations period, which is awfully short. Plus, without access to landlords’ documents through court-ordered discovery, you may have a hard time proving your case.

The doomsayers predicted a wave of litigation after the AGG was passed, but it never happened. Critics call the AGG a paper tiger (g) and have routinely called for it to be strengthened.

Germans take almost-sensual pleasure (g) in denouncing the ‘pervasive racism’ of American society. But the American legal system offers far more powerful tools for combating racial discrimination than Germany does.* In Germany, legal innovations that have long been the law of the land in the USA are still fiercely opposed by all but the most left-wing parties.

 

Continue reading "Housing Discrimination There and Here" »


Headscarf Wearer Wins in US Supreme Court

A perennial chestnut of my comparative-law seminars is the treatment of Muslim women who wear headscarves in the USA and Germany. So my news ticker let me know that a woman named Samantha Elauf just won her case before the Supreme Court, in an 8-1 decision, the New York Times reports. From a Cornell Law School summary: 

In 2008, seventeen-year-old Samantha Elauf, a self-proclaimed practicing Muslim, interviewed for a Model position at an Abercrombie Kids store in Tulsa, Oklahoma.During her interview, Elauf wore Abercrombie-style clothing and a black hijab—a religious headscarf. The assistant manager interviewing her, Heather Cooke, did not confirm Elauf’s religion but “assumed that she was Muslim.” During the interview, Cooke did not ask Elauf about her headscarf and Elauf did not bring it up. Although Cooke thought Elauf was a good candidate, Cooke asked her supervisor if wearing a headscarf was permissible and whether the headscarf could be black. The supervisor escalated this question to the district manager, Randall Johnson, who declared that Elauf’s headscarf violated the Look Policy and Elauf should not be hired. Cooke claims that she informed Johnson that Elauf wore a headscarf for religious reasons but Johnson denies this claim.

On September 17, 2009, the Equal Employment Opportunity Commission (“EEOC”) filed a Title VII action in theUnited States Northern District of Oklahoma (“district court”) alleging that Abercrombie rejected Elauf because she wore a hijab and then failed to make a religious-based exception to its Look Policy. The district court ruled in favor of the EEOC, reasoning that Elauf’s wearing of the headscarf coupled with Cooke’s knowledge that Elauf wore the headwear as part of a religious belief provided sufficient notice of the need for a reasonable religious accommodation, awarding the EEOC $20,000 in compensatory damages.

The issue here was narrow. Since 1964, there has been no debate that a private company cannot refuse to hire someone based on their religious belief or core religious practices. If the company believes there may be a conflict between the employees’ religion and job requirements, the company must first try to find a reasonable accommodation. Simply refusing to hire someone on the basis of their religion is illegal. The only question in this case was whether Elauf told her employer she wore a headscarf for religious reasons.

The court held she didn’t need to prove this, since any reasonable employer would at least suspect that a female wearing a headscarf is probably doing so for religious reasons. Thus even the reliably conservative Justice Antonin Scalia called this case ‘easy’. Justice Clarence Thomas was the only dissenter, hie thinks that (1) because Abercrombie & Fitch had a general policy that its employees can’t wear ‘caps’; and (2) a headscarf is a kind of cap, therefore A & F was simply applying a neutral policy to every job applicant, and wasn’t discriminating.

Decision in .pdf form is here for you law nerds.


NY Assault Violinist's Lawyers Say They Know Who Drugged Him

Stefan N.'s lawyer has issued a statement, saying they've identified the person who he says drugged him:

This unfathomable and, entirely out-of-character, incident and Stefan’s arrest stemmed directly from Stefan himself being the victim of a crime upon him. We have identified the person who stole items from Stefan and are working to develop what else was done, including involuntarily drugging Stefan with powerful agents.

Investigation revealed that an as yet unknown person left Stefan’s hotel room with his Ipad, wallet, including cash, credit cards and identification and began using Stefan’s credit cards around New York City, successfully and unsuccessfully, on items that Stefan would unquestionably never have sought to purchase. We have obtained a photo of this person and are working with the police to identify and locate the perpetrator of this horrendous crime.

The upside is that Stefan seems to have aggressive lawyers. Issuing a statement like this during a pending investigation is not something to be done lightly, since (1) it ensures the case stays in the headlines; and (2) if later events cast doubt on it, that could be problematic at trial. Therefore, we can be pretty sure the lawyers are sure of the facts detailed in this statement, which do tend to back up Stefan's story.

As to point number 2, the statement is interesting for what it leaves out, including (1) the gender and background of the suspect; (2) how the suspect got into Stefan's hotel room; and (3) exactly how the drugs were 'involuntarily' administered to Stefan. The statement leaves open the possibility that Stefan invited this person into his hotel room. And it also seems to indicate that whoever he let in -- if he indeed let anyone in -- was stupid, desperate, or high enough to try using someone else's credit card right after stealing it. Not the sort of behavior one associates with guests at a luxury boutique hotel.

Stefan is innocent until proven guilty and may well end up actually being shown to be innocent of any crime, but I have a strong feeling we're going to learn some rather pungent details about his private life.


The Leipzig String Quartet in Happier Times and Now

Here is a review from ClassicsToday (website highly recommended) of the Leipzig String Quartet's performance of Schönberg's String Quartets Nos. 2 & 4:

Soprano Christiane Oelze’s pure intonation and ethereal tone ideally combines with the deep, bittersweet sonorities of the Leipzig Quartet. The German musicians play this cosmic work with acute intelligence and clarity, while their sense of rubato helps them to unveil the music’s most secret and sorrowful expression. The homogeneity of their ensemble playing seems hard to match. Altogether, this performance is one of the most gripping and inspired committed to disc.

Wow! Gotta get me that CD. Now to a much less inviting incident. Stefan N. (see what I did there?), a violinist in the quartet, recently made a very different kind of news:

A renowned German violinist went on a naked rampage at a Manhattan hotel, forcing his way into a female tourist’s room and choking her, law enforcement sources told The Post.

Staffers at the boutique Hudson Hotel at Columbus Circle were first alerted to the bizarre antics of Stefan N. after guests reported seeing a man roaming around naked early Friday, the sources said.

A 64-year-old female hotel guest from North Carolina “heard a knock and opened her door slightly’’ around 8 a.m., a law enforcement source said.

She was confronted by a wild-eyed N. — who recently performed at the Library of Congress — “completely naked,’’ the source said.

The violinist allegedly choked the woman so hard that the blood vessels in her eyes were ruptured, according to a court complaint.

Hotel staff heard the victim crying for help and pulled the crazed man off her, cops said.

N. managed to flee back to his room, but police arrested him shortly after, the sources said.

The victim and N. did not know each other, the sources said.

A source close to the musician claimed that the episode happened after someone slipped a drug into N.’s drink at the hotel bar. He has no memory of what happened, the source said.

But police said that when they took N. into custody, he showed no outward signs of mental distress.

It's early days yet, and I don't want to prejudge the case. Anything from a fugue state to an allergic reaction to a stroke could have caused this behavior. N. is innocent until proven guilty, and I hope he is in touch with the German consulate and getting good legal help. 

However, the source is putting about the story that someone must have secretly drugged his drink. Now, the rumors are true: I used to be a criminal defense lawyer. 'They must have slipped it in my drink!' is one of those claims that upstanding citizens often make when their first experiment with drugs goes spectacularly wrong. (Especially when that experiment occurred in the BDSM-themed darkroom of the Manhole, something you might not want your wife Jill or your managing partner Bob to find out about.) It's not quite as fishy as the evil-twin / parallel universe defense, but it's in the same general category.

Now I am certainly not saying source's story can't be true. Nobody knows yet! But as to the general question of people slipping drugs into drinks, think it through. You're Johnny Scumbag, the drug-slipper. You have just spent lots of your own good money to buy powerful drugs, you're either (1) going to use them yourself (99% of the time); (2) use them to knock someone else out so you can rob/take advantage of them; or (3) trade them for something else you want. But #2, the presumed scenario here, requires drugs that would actually *knock someone out*, not make them allegedly run around a nice hotel naked, allegedly strangling strangers.

The only reason you would secretly slip psychotomimetic stimulants into someone's drink is if you hated them and wanted to put them in danger and ruin their reputation. Giving them crazy drugs to rob them is itself crazy, since they are just as likely to kill you instead (see strangling described above). I know the classical-music world can be a nest of intrigue, but I have a hard time believing someone hated N. that much. In any case, I hope N. is in contact with his consulate and has a good lawyer. He's going to need one.


New Documentary on Jens Soering

This is a new German documentary about Jens Soering, the German national who was convicted of a 1985 double-murder and sentenced to life imprisonment in Virginia, where he still is. Here are two trailers, the first in German, the second in English.

Soering's case has a long and complex history. While in England, he fought extradition to the state of Virginia on the grounds that it would violate European human rights law for Britain to extradite Soering to Virginia to face the possibility of capital punishment. The European Court of Human Rights agreed in Soering v. UK. Virginia dropped its demand for the death penalty, Soering was returned, convicted, and now is in prison for life.

He initially confessed to the crime and fled the country. He now claims he's innocent of the crime, but I haven't really been convinced by anything I've read so far. The documentary looks intriguing, I'll post any thoughts as soon as I've seen it.

This is the first and last time I will ever put a trigger warning on this blog, but these videos contain brief shots of crime scene photos with mutilated human bodies, so be advised. 


US Department of Justice: No Charges for Michael Brown Shooting

After an exhaustive analysis of all the evidence surrounding the Michael Brown shooting, the U.S. Department of Justice concludes (as I predicted long ago) that federal charges against Darren Wilson aren't justified, since his story of what happened is supported by the evidence and provides him with a defense:

Witness accounts suggesting that Brown was standing still with his hands raised in an unambiguous signal of surrender when Wilson shot Brown are inconsistent with the physical evidence, are otherwise not credible because of internal inconsistencies, or are not credible because of inconsistencies with other credible evidence. In contrast, Wilson’s account of Brown’s actions, if true, would establish that the shootings were not objectively unreasonable under the relevant Constitutional standards governing an officer’s use of deadly force. Multiple credible witnesses corroborate virtually every material aspect of Wilson’s account and are consistent with the physical evidence.... The only possible basis for prosecuting Wilson under Section 242 would therefore be if the government could prove that his account is not true – i.e., that Brown never punched and grabbed Wilson at the SUV, never struggled with Wilson over the gun, and thereafter clearly surrendered in a way that no reasonable officer could have failed to perceive. Not only do eyewitnesses and physical evidence corroborate Wilson’s account, but there is no credible evidence to disprove Wilson’s perception that Brown posed a threat to Wilson as Brown advanced toward him. Accordingly, seeking his indictment is not permitted by Department of Justice policy or the governing law.


Bad Kaarma: 70 Years for Montana Burglar Trapper

Remember Markus Kaarma, the Missoula, Montana man who waited outside his garage for someone to come burglarize it, then fired his shotgun into the garage, killing German exchange student Diren Dede?

Well, as you might expect in America's gun-obsessed paranoid fanatic culture of cowboy-style vigilantism, he claimed self-defense under the frontier-style 'Castle Doctrine' and acquitted. He is now on a celebrity speaking tour among American gun-rights groups.

Sorry, having a bit of fun there. You didn't think I could pass up a chance to poke a little harmless fun at German Besserwisserei, did you? Kaarma was convicted of murder by a jury and sentenced by a judge to seventy (70) years in prison:

He dismissed Kaarma's claim he suffered from "anxiety" and an "anti-social disorder," saying it "doesn't excuse the anguish you have caused."

"You pose too great a risk to society to be anywhere else but the Montana State Prison. Good luck to you, son," McLean said.

"I'm sorry my actions caused the death of Mr. Dede," Kaarma told the judge before learning his fate.

He will be eligible for parole in 20 years. As a law-talking guy, I feel compelled to use this as a teaching moment. Right after the shooting, both Kaarma and his wife, apparently believing Montana law gave them the right to do what they did, spoke in detail. They described how they had been burglarized many times, got fed up, and set a 'trap' by leaving their garage door open and waiting until a motion sensor told them someone was inside. Then Kaarma fired.

When a lawyer reads about people talking so freely about their involvement in a homicide, our reaction is similar to a doctor seeing a pregnant woman down a liter of vodka. If you're ever arrested -- and I hope  some of my readers live life loud enough to risk this -- do not say a word to anyone, no matter what, until you have spoken to a lawyer. This rule applies to everyone, everywhere, no exceptions. It's the equivalent of a fundamental physical constant, one of the basic building blocks of the legal universe. By chatting so volubly about his motives and actions, Kaarma didn't just tie his lawyers' hands, he practically chopped them off.

FWIW, I should add that this penalty, like most American criminal penalties, strikes me as Draconian. It is certainly longer than he would have gotten for a comparable crime in most European countries, including Germany.