Just a final post to wrap up Sunshine Week: The San Diego Free Press ran an interesting op-ed on governmental transparency (and media indifference) from former San Diego City Council member, and current Cal Aware President, Donna Frye. Frye notes that, despite the importance of the values that Sunshine Week represents, much of the media in San Diego was basically indifferent, as if open government were of no particular importance or were not the problem of the media. She adds:
Open government matters because what we don’t know can harm us. We have a right to make informed choices about the most basic things in our lives such as the food we eat and the water we drink. We are better off knowing the standards government uses to ensure our health and safety rather than having to guess about whether or not our food and water is safe to consume.
It matters because what we don’t know can cost us a boatload of money.For example, we have a right to know whether elected officials are spending our money wisely on things that will improve our lives, or using it to curry favor with folks who can spend unlimited amounts to get them re-elected. Open government informs our decisions about whether our local taxes would be better spent building a new stadium for the Chargers or fixing our aging infrastructure. Without knowing what it costs, it’s impossible to make a reasonable decision.
Open government matters because it improves our lives by giving us a voice. An informed public is better able to actively participate and change the things we don’t like, but that’s hard to do if we can’t get access. Government information belongs to us, not the elected officials, and it’s something worth protecting and fighting for every day. Without it, we are simply wishing and hoping that what we think we know is accurate. It also makes us an easy target for those who know things that we don’t.
Amen. Frye’s emphasis, in particular, on the idea that we must persistently push for openness is absolutely correct. If the people do not push, the government will not conduct its affairs openly and will instead move continually toward greater opacity.
This week the California Supreme Court granted review in Maas v. Superior Court, S225109, regarding whether PC 170.6 permits a peremptory challenge to be brought against a judge hearing a habeas petition before an order to show cause has issued. The underlying opinion in this case, though no longer citeable, is at (2104) 232 Cal.App.4th 169.
Suppose an attorney does a poor job handling sentencing in a noncapital case, and suppose the defendant ends up in federal court arguing, on habeas, that that lawyer’s error constituted ineffective assistance of counsel (IAC) — is there “clearly established federal law” on non-capital IAC such that the defendant has a shot at getting relief?
A Ninth Circuit panel takes a look at that question in Daire v. Lattimore (12-5567), published on Thursday, and nods in the direction of suggesting that perhaps there is “clearly established” law — but then concludes that it doesn’t make any difference for this particular petitioner.
Is that dicta? I express no opinion on the matter, and in any event, after Lopez v. Smith it doesn’t seem like Ninth Circuit opinions can necessarily tell us all that much about the contours of what’s “clearly established.” But anyway it’s helpful language, so here it is:
As the district court observed, we have twice previously held that there is no clearly established law, as required under AEDPA for a federal court to provide habeas relief to a state prisoner, that the Strickland standard applies to sentencing in noncapital cases. See Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.2006), and Cooper–Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir.2005) (“Since Strickland, the Supreme Court has not decided what standard should apply to ineffective assistance of counsel claims in the noncapital sentencing context. Consequently, there is no clearly established law in this context.”). That is a proposition not free from debate, as indicated by the concurring opinion by Judge Graber in Davis, where she questioned whether Cooper–Smith was correct on that point. See Davis, 443 F.3d at 1159 (Graber, J., concurring); see also Davis v. Belleque, 465 F. App’x 728, 729 (9th Cir.2012) (per curiam) (Paez, J., concurring) (agreeing with Judge Graber’s concurrence in Davis ). Daire also argues that later Supreme Court decisions have made clear that the Strickland standard applies more generally, citing, for example, Glover v. United States, 531 U.S. 198, 201–02, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001); Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 737–38, 741–42, 178 L.Ed.2d 649 (2011); Harrington, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011); and Lafler v. Cooper, –––U.S. ––––, –––– – ––––, 132 S.Ct. 1376, 1385–86, 182 L.Ed.2d 398 (2012).
We see some merit to Daire’s argument. It is clear that the Strickland standard, though originally limited by the Strickland opinion itself to capital sentencing, see Strickland, 466 U.S. at 686, now applies in contexts beyond that.
This may be a little out of left-field for some folks, but anyway here goes: I’ve had a sense in the last month or two of getting to a new and interesting place in my work, and this has primarily had to do with a talk that I heard Equal Justice Initiative Executive Director Bryan Stevenson give in Monterey — a talk that was somewhat similar to his TED talk but more focused on the work specifically of post-conviction lawyers. This new place, oddly enough, connects to some reactions I’ve had in listening to the just-released Kendrick Lamar record, which is a work of hip hop that is so ambitious and dense, in a literary sense, that it’s a little like a graduate seminar wrapped in a cocoon of popular art.
The connection between these things has to do with the importance of history and interpersonal connections in telling the stories of human struggle. A point that Stevenson stresses (as do many folks who work on death penalty issues) is that defense attorneys need to strive to understand the deep story of their client’s lives: not simply the facts of the offense, however dramatic those may be, but the facts of the life that came before, the culture from which that life emerged, and the broader history of that individual’s community. Frequently, understanding those stories requires addressing the devastating effects of slavery and/or racism, as Stevenson discusses starting at about the 9 minute mark in the talk linked above. It will frequently also deal with poverty, with abuse, with neglect, with mental illness, and with the structural challenges and inadequacies that push individuals toward lives of desperation.
On Kendrick Lamar’s new record, this emphasis on the deeper currents that inform contemporary action is made literal through a digitally created “interview” between Lamar and the late rapper Tupac Shakur, who was a giant of the hip hop community when he was murdered in 1996. Lamar includes in this “interview” a clip of Shakur saying that “we ain’t really even rappin’, we just letting our dead homies tell stories for us” — which, obviously, is, exactly what is happening in the interview itself. And though Lamar is commenting on the role of history in the narrative form of hip hop, this idea that our stories include the voices of the past is undeniably true, and undeniably powerful. The dead continue to speak in the lives of the living. The threads of the past are woven, inextricably, into the fabric of the present.
I’ve been thinking about these historical threads because I get very aggravated with the predictable popular narratives of criminal justice, which invariably focus on the “monstrosity” of individual actors — as if individuals just popped up out of nowhere, full of badness and ill intent, like villains in a television drama. I get tired of reading about how such and such a Terrible Thing happened when a person was let out of prison slightly early, as if the very fact of incarceration were not also a gaping wound in some person’s family and a source of pain and suffering for a broader community. And I get truly vexed when I read criminal justice policy analysts who strive, perversely, to deny the deep and obvious racial dynamics in the way policing, prosecution, and incarceration occur in America. These types of arguments do their utmost to ignore the deep connections in human life, disregard the profoundly painful rifts in American society, and emphasize instead only the most simplistic and superficial ideas about human behavior.
What Kendrick Lamar and Bryan Stevenson both suggest, in very different ways, is that we must insist on bringing the past to life if we are to meaningfully engage with contemporary stories of struggle. We must tell the stories of individual clients not as “clients” but as real people, who come from real places, and real histories. And that requires both imagination and a kind of deep empathy that is more akin to the work of an artist than a lawyer, at least traditionally conceived.
The appellate courts, needless to say, are not overwhelmingly eager to hear these stories, nor are they particularly well equipped to evaluate or respond to them. The courts are not set up to review human lives writ large, they are there to evaluate judicial action, writ small, and carefully confined to issues that can be cleanly resolved on the basis of precedent.
But it seems to me that it is our obligation, as much as possible, to push the boundaries of those expectations, and to insist on telling the stories that should be told. We should insist on the humanity — the full, contextualized humanity — of the people we represent, and we should tell the story of that humanity at every opportunity. The reaction, from some quarters, will undoubtedly be as baffled as if we had constructed an “interview” with an artist who has been dead for nearly two decades. But drawing those critical connections between the past and the present is the only way to do our work, imaginatively and richly, in the manner in which it needs to be done.
(The title of this post is from Lamar’s song These Walls.)
This weekend the Shreveport Times ran a amazing op-ed (with accompanying video and images) in which the prosecutor who obtained the wrongful conviction (and death sentence) of Glenn Ford both apologized for his role in the case and argued that
the death penalty is an anathema to any society that purports to call itself civilized. It is an abomination that continues to scar the fibers of this society and it will continue to do so until this barbaric penalty is outlawed. Until then, we will live in a land that condones state assisted revenge and that is not justice in any form or fashion.
The piece, written by Marty Stroud, is an absolute must-read. Mr. Stroud is a brave man, in my opinion, for taking on the difficult task of trying to reconcile with what happened in this case.
I was astounded by the analysis in a case called Gonzalez that 4/2 published in December, concluding that the plain language of the threats statute didn’t mean what it said — i.e., that the Penal Code’s reference to a “statement, made verbally, in writing, or by means of an electronic communication device” doesn’t actually require a “statement” to be made. Apparently I’m not the only one surprised by that conclusion, as the California Supreme Court granted review in Gonzalez this week. The result, it would seem, will either be a major reworking of the definition of “criminal threats” or a return to what we all previously thought the law required.
The LA Times notes today that San Diego Police Department use of force has fallen 46.5% since the city began having officers wear body cameras. Complaints are also down dramatically, as are uses of tear gas.
More transparency = better government. That’s usually true in general, and it seems to be true in policing as well.
The New York Times has an interview today with Noam Chomsky on race. Chomsky emphasizes the following point:
The Thirteenth Amendment formally ended slavery, but a decade later “slavery by another name” (also the title of an important study by Douglas A. Blackmon) was introduced. Black life was criminalized by overly harsh codes that targeted black people. Soon an even more valuable form of slavery was available for agribusiness, mining, steel — more valuable because the state, not the capitalist, was responsible for sustaining the enslaved labor force, meaning that blacks were arrested without real cause and prisoners were put to work for these business interests. The system provided a major contribution to the rapid industrial development from the late 19th century.
That system remained pretty much in place until World War II led to a need for free labor for the war industry. Then followed a few decades of rapid and relatively egalitarian growth, with the state playing an even more critical role in economic development than before. A black man might get a decent job in a unionized factory, buy a house, send his children to college, along with other opportunities. The civil rights movement opened other doors, though in limited ways. One illustration was the fate of Martin Luther King’s efforts to confront northern racism and develop a movement of the poor, which was effectively blocked.
The neoliberal reaction that set in from the late ‘70s, escalating under Reagan and his successors, hit the poorest and most oppressed sectors of society even more than the large majority, who have suffered relative stagnation or decline while wealth accumulates in very few hands. Reagan’s drug war, deeply racist in conception and execution, initiated a new Jim Crow, Michelle Alexander’s apt term for the revived criminalization of black life, evident in the shocking incarceration rates and the devastating impact on black society.
Emphasizing this context is not to say that personal choices don’t matter or that “society” is somehow responsible for bad acts. It’s simply a way of remembering that policing policies on the street are really only the tail of the dog of state power, and that there are a lot of other things that “dog” is typically trying to accomplish besides merely keeping society safe.