December 29, 2004
Please Help ::
social conscience — No Tags
5:51 pm
I have nothing to add to the current weblog discussion on the tsunami disaster in the Indian Ocean. I’ve been watching as the death tolls have climbed over the past two days, and I stagger with every update.
Legal Fiction has provided a link to a list of aid agencies that will be providing relief to the victims of the disaster.
Please, Connect These Dots ::
politics — tagged ag, crime, legal, politics and wisconsin
5:44 pm
So, ten months ago, a certain Wisconsin Attorney General was cited for a DUI. Then, last month, a high profile hunting incident resulted in five people killed and three hurt. Now, as Talk Left points out, the same Wisconsin Attorney General cited earlier for a DUI is prosecuting the case. This seems a bit fishy to me.
According to Talk Left, this will be the first case that Attorney General Lautenschlager will try personally as attorney general. If you’re still wondering why she picked this case over any other crime in Wisconsin, here’s my theory: (1)It’s a high profile case, which continues to make the rounds in the national news (I can’t seem to get away from the story, even out here in Vermont); (2)Lautenschlager is up for re-election in 2006; (3)she will have some significant political obstacles surrounding her DUI to overcome in that election; (4)what better way to get a head start on those obstacles then to put a dangerous (and potentially mentally unhinged) criminal behind bars.
Now, on the one hand, this is simply a canny political move. The case is high profile. It is also a slam-dunk for whoever prosecutes the case (and no matter their abilities as an advocate). So, I think Lautenschlager will be able to win the case, thus making herself look good — or at least a little better — without too much of a risk of railroading the defendant or otherwise endangering due process. But on the other hand, such a gamble with justice seems like bad ethics. I think that any gamble like this, no matter how slight it is, should be treated with the greatest care or, in the best case scenario, avoided entirely. Not to say that Lautenschlager is necessarily a bad person — she is most likely responding to the necessity of being an elected official. But still, the idea that the defendant would have to pay the price of an unfair trial because of personal mistakes that Lautenschlager made is fundamentally off-putting to me.
December 28, 2004
Lincoln At Gettysburg ::
books — tagged books, conlaw, history, legal, lincoln and politics
9:52 pm
Last semester, my legal writing professor made a practice of starting off our Monday classes with a “featured book of the week.” The event was about what you would expect — he would take thirty seconds to introduce a book, say why it was good, and half-jokingly suggest that we try to read it when we had the chance. (He knew that as law students, we had our noses buried in casebooks for the duration of the semester.) But I wrote down the titles of all the books he suggested, and made a commitment to read at least one of them over the break.
Happily, I can now say that I fulfilled that commitment by finishing Lincoln at Gettysburg. Overall I enjoyed it. The author, Garry Wills, was quite adept at discussing President Lincoln’s mindset without venturing into the realm of psychological biography (a genre for which I’ve found I have very little tolerance). The more compelling points of the book include a discussion of the American fascination with death in general — and cemeteries in particular — during the 1860’s; a refined analysis of Lincoln’s conception of the Confederacy and the Civil War (Lincoln considered the Confederate states still a part of the Union, held temporarily under the sway of a few reckless Confederate leaders).
But the most compelling part of the book was the effect that the Gettysburg Address has had on the way Americans conceive of the Constitution. Wills makes the argument that the Address now stands as the modern understanding of the Constitution. Before that speech, the Constitution was widely viewed as accepting slavery as a base political reality. It was silent on the issue of whether or not slavery was moral. But Lincoln, basing his logic on the Declaration of Independence, made clear that such an institution was in fact intolerable to the Constitution, because ultimately, it committed the nation to equality.
Interestingly, this radical departure from the norms of the mid-19th century has its detractors as well. To this day, a national commitment to equality exists to the consternation of the original intent theorists. As an example, Wills notes the legal minds such as Edwin Meese and Robert Bork, who argue that a national commitment to equality had been “sneaked into the Constitution.” When viewed in this light, the original intent school are really put out in the cold. For example, I would be astonished to find even the most conservative members of the Bush Administration advocating the position that equality should not be a “national commitment.” According to Wills,
the professors, the textbooks, the politicians, the press have overwhelmingly accepted Lincoln’s vision. The Gettysburg Address has become an authoritative expression of the American spirit — as authoritative as the Declaration itself, and perhaps even more influential, since it determines how we read the Declaration. For most people now the Declaration means what Lincoln told us it means, as a way of correcting the Constitution itself without overthrowing it.
As a final note: I’ve been learning the extent of Lincoln’s talents as a constitutional lawyer. This, of course, has had both good and bad effects. On the one hand, he was able to force Americans to reconceptualize the Constitution as a document that was intolerant of slavery (rather than one that accepts it as a political reality). But, as I’ve learned in the current book I’m reading, he was also able to use his skills to justify the limitation — or complete removal — of civil rights during wartime. I sometimes wonder if such a person could be elected to national office at this point in history.
December 21, 2004
What’s Right With Kansas ::
legal — tagged capital punishment, conlaw and legal
11:21 pm
I’ve been following with some interest the story of the Kansas Supreme Court overturning that state’s death penalty statute. According to the Tribune article, the Kansas high court found that “the law is weighted against defendants and must be rewritten by legislators.” As is generally the case with press reports of court decisions, this is a bit of an oversimplification of the court’s reasoning. It also may lead some readers to miss out on the importance of this decision — and other, similar ones that have been handed down by state courts lately.
Before talking about the importance of this decision, I thought it might be helpful to provide some background on death penalty statutes. In order for the statutes to be constitutional, the factfinder (usually a jury) must weigh both aggravating factors and mitigating factors before it determines whether a convicted felon should be sentenced to death. Aggravating factors might include the tactics used to kill the victim, the likelihood that the defendant might commit another crime, or the effect that the crime had on the victim’s family. Mitigating factors might include the overall disposition of the defendant, whether or not they have children (who would be more likely to depend on state welfare systems if the defendant was dead), or — once again — the likelihood of the defendant committing another crime. In these cases the jury must provide extra weight to the mitigating factors. In many cases, if the jury finds in favor of a single mitigating factor, they may be required to ignore all the aggravating factors, and thus spare the life of the defendant. This system is intended to have a “narrowing effect,” thus reserving capital punishment only for the most egregious crimes out there.
Now, I’m not a real capital punishment expert, and I have even less of an understanding of Kansas’ statutes. But the Tribune article suggests that the In addition to the statute being unconstitutional, it would also be potentially dangerous. It would run the risk of netting a lot more convicted criminals than would seem fair or effective. So in addition to protecting the constitutional rights of defendants who are death eligible, it seems that the balancing proceess described above should be heralded by death penalty proponents as well. A system that was weighted strongly toward the defendant would more likely result in capital punishment occurring only in the worst cases. (And that was the intent of the death penalty, right?)
In any event, if the Supreme Court grants cert on the case, it will be the second capital punishment-related case (that I know of) that came from a State Supreme Court. (The other is Roper v. Simmons, with certiorari granted to the Supreme Court of Missouri.) This suggests to me that not only the Supreme Court of the United States, but the high courts of all of the states that still have the death penalty are thinking more seriously about the constititutional legitimacy of the death penalty.
And of course, those of us opposed to capital punishment hope that the the decision of the Kansas Supreme Court is — in one way or another — affirmed.
