Let there be No More Deaths!

“It’s not a trail of despair,” our guide John says. “For the migrants, it is a trail of hope.”

John volunteers with No More Deaths/No Más Muertes (NMD), a humanitarian aid organization that fights to end migrant deaths along the Arizona/Mexico border. Last year (from Oct. 1, 2009 to Sept. 1, 2010), the inhospitable frontier claimed the lives of at least 253 migrants – people young and old, male and female, who died from fatigue, injury, dehydration, and hypothermia. And those were just the recovered bodies, found by Border Patrol or NMD volunteers. Hundreds, maybe thousands, never arrive and are never found. “Disappeared,” in a way.

I spent this past week (my law school spring break) along the Arizona/Mexican border and in Tucson, volunteering with No More Deaths. From the look of NMD volunteers – often young radical-types in tight pants and dyed hair who would rather “fuck borders” than secure them – you might think the organization would be a little unwieldy. Not so. With a consensus decision-making structure, they manage a smooth operation, staffing a dozen desert campsites, keeping up a fleet of donated outback vehicles, preparing medical supplies for injured migrants, and most famously, dropping blankets, cans of beans, and gallons of water along the trails.

“I found your water,” successful migrants later tell NMD. “Wouldn’t have made it without it.”

That was our task. With ten other law students, I loaded up my backpack with my own provisions (sandwich, snacks, and water), then tossed in a blanket and a half-dozen cans of beans, then took a gallon of water in each hand and set out for the day. We left water and beans under trees, targeting areas just south of contaminated water holes (“cow water”) that thirsty migrants sometimes drink in desperation – which, for many, is the beginning of the end. Bad water leads to nausea and diarrhea, until people succumb to the sun, their bloated remains – or what’s left of them after the coyotes – becoming statistics.

Since 2000, 2,104 bodies have been recovered in the Arizona section of the border.

Discarded personal effects line the trails: a toothbrush, a child’s torn t-shirt (“Don’t touch,” John says, or you’ll find scorpions and spiders), high-heels. High-heels? Yes, many people crossing the border were told that Phoenix would be a few days’ walk, no biggie, so sure, bring everything.


Empty water bottles and cans of Red Bull also dot the trails. NMD actually has a litter removal project in an effort to appease critics (and some prosecutors) who accuse them of littering.

We visited shrines – wooden crosses in the dirt decorated with photos, trinkets, and necklaces – some created by volunteers and some by migrants themselves. They mark spots where earlier migrants died. One we visited marks the death-site of a 14 year-old El Salvadoran girl, Josseline Jamileth Hernández Quinteros, who, with her 10 year-old brother, was trying to reach their mother in Los Angeles. She started vomiting and could not keep up. Their guide (a hired “coyote”) feared that Border Patrol would catch the whole group and decided to leave her behind. When her brother arrived in LA several days later, he sounded the alarm. It was too late.

Standing around the shrine, no one really knows what to say.  Even our guides, who had been there before, have trouble finding words.

Later we run into two Border Patrol agents. Are we US citizens? Yes. After that, there’s not much more they can demand of us. But we're hiking with one Australian citizen who is also volunteering with NMD, and one of the agents rattles her: “I don’t like people coming into my country to help illegals,” he tells her. “They’re coming to ruin America.” I bite my tongue. In the end, it’s our country, too. So with the privilege of citizenship, we pass by, though not before he warns us of drug smugglers. “If you’re helping the drug mules,” he says, “I have no mercy.”

Border agents have been known, on occasion, to slash the water gallons that NMD volunteers have left out for migrants. On the other hand, they also administer medical assistance to injured migrants.

“It’s a war out there – the migrants, the agents,” I reflect one night. It’s corny, but I feel it: Arizona and its militarized border have become the frontline of a vicious battle.

At night, we huddle around the campfire, sharing warmth and the day’s emotions, hearing war stories from older volunteers (“I was charged with assaulting an officer’s boot with my face,” says John), and making smores. We find the Big Dipper and Orion’s Belt, concealed in the morass of stars that renders flashlights unnecessary and guides migrants through the night. Few migrants move in the daylight; discovery is too risky and the sun is too hot.

During the day, I hide under sunglasses, a safari hat, and layers of sunscreen reapplied every couple hours. Prickly desert plants tear at my pants and my skin. At night I hide under five layers of long underwear and sweatshirts, two hats (one a balaclava), wool socks, extra blankets, and a sleeping bag. When I rise, sleep-deprived from the shivering, the tent is covered in frost.

I awake to a Border Patrol helicopter flying overhead at 3 in the morning.

On our last morning at the NMD camp, just past sunrise, seven migrants walk in, completing their trek for the night and looking disheveled after four days of travel. They seem to know of NMD. The seven are young Mexican men seeking work in the United States. One has a brother in Phoenix. We offer them fresh cantaloupe and scrambled eggs. One looks sick, wrapping himself in a blanket and staring blankly ahead. We learn later that he turned himself in to Border Patrol for voluntary deportation. One NMD volunteer called his mother to say he’s on his way back.

The six others have several nights of walking ahead. Meanwhile, we law students who have “earned” our citizenship by birth pile into our van for the two-hour drive back to Tucson. The migrants will creep along as invisible as possible, trying to evade the infrared cameras on Border Patrol’s helicopters. After the journey, they’ll assume a new form of invisibility: the undocumented worker.

Before the trip, I feared I expected too much from Arizona; it’s just one state, while immigration is a national question. Undocumented people contribute to every state in this country (paying taxes to support social services they cannot enjoy), and a federal judge last year enjoined parts of Arizona’s SB1070 specifically because “the federal government has broad and exclusive authority to regulate immigration” (703 F. Supp. 2d 980). So why Arizona? Do we misconstrue a question meant for Congress by consigning it to a single state? And what do border issues have to do with the broader goal of immigration reform?  Yet Arizona delivered.

In Pima County Superior Court, we pack the courtroom to support two people who were convicted and are awaiting sentencing for the offense of working under fake work papers. They had purchased Social Security numbers. One worked as a diner cook; the other, named Gustavo, worked as a dish-washer at Hooters. Gustavo spent six months in jail awaiting a plea agreement (as if he needed to be incapacitated or rehabilitated for seeking to provide for his wife and their two young children, both American citizens). In jail, he was unable to make mortgage payments on the home they had bought ten years ago. It was seized. We wonder: Is that the new American dream, holding immigrants criminally liable for washing our dishes? Now when their probation terms end, they’ll be deported.

“Why didn’t they go to trial?” we ask their lawyer Margo, also with No More Deaths. “It was too dangerous,” she says. The evidence was too damning and the prison time was too risky.

It could have been worse. Both defendants avoided potential prison terms by taking pleas and presenting the judge with letters from employers and community leaders, all attesting to their hard work. As their lawyer reads the letters aloud to the court, it's hard not to think: Why are we deporting these people again? Both defendants apologized profusely to the court as if they were criminals. But what about so many others, people who wash our dishes and pick our lettuce but aren’t charming enough to pack a courtroom with supporters at their sentencing? Prison, I guess?

It seems these migrants cross the desert at night, tiptoeing around cacti, to reach a destination – back-kitchens, washing dishes – where they face the same basic task: trying to stay invisible.

Fishhook cacti are the coolest.

That was state court. Later we observed a criminal hearing at Tucson’s federal courthouse. Unlawful presence in the United States is not a crime (though it makes the person deportable) but unlawful entry is a misdemeanor under 8 U.S.C. §1325. And repeated unlawful entry is a felony under 8 U.S.C. §1326, carrying a minimum of two years, and a max of 20, in federal prison.

“If everyone pled guilty to the felony,” a federal public defender tells us, “it would bring down the system.” In 2008, the federal courts and Border Patrol implemented a 'streamlined' process whereby captured migrants take a plea bargain for the misdemeanor charge, receive a “time served” sentence, and then depart on a bus back to Mexico that very night.

In one swoop, “Streamline” takes a defendant from his or her initial hearing all the way to sentencing. And not just one defendant, but 70 defendants in a brisk 45 minutes. They have shackles around their wrists and ankles that jiggle through the hearing.  They wear whatever clothing they were captured in: usually jeans and t-shirts (Oakland Raiders, one says). Most look under 30. Two are women. All look scared and sleep-deprived. Most are first-time migrants looking for work, while others had been working in the U.S. for years. They had started families here before being discovered (“Make sure to use a left-turn signal,” says our NMD guide Lois) and deported to Mexico. When they were picked up in the Arizona desert, they had been trying to return “home.”

In the age of mass deportations and mass incarceration, we now have mass courtroom hearings. This rushed production, performed for hoards of non-English-speaking defendants who’ve met their lawyers only hours earlier, happens every single weekday.

Crosses at the Coalición de Derechos Humanos, Tucson.

For reasons no one seems to understand, not all captured migrants enter Streamline. Most are simply deported. The 10% who are channeled into Streamline, by contrast, get deported with a criminal record. Once they have a criminal record, if they cross again, then they’ll be subject to the harsher charge of repeated illegal entry, which carries a prison term of 2-20 years. With the plea bargain, they’ll take 20-180 days.

Ostensibly, the point of hauling these migrants into federal criminal court (instead of simply deporting them) is to instill in them the consequences of crossing again: prison time.  Yet the federal public defender says they get calls every month from deported migrants, asking: What the heck just happened? If 11 law students had to pause to understand this maze of federal statutes, sentencing schemes, and hastily recited Constitutional protections – somehow “knowingly and voluntarily waived” by non-English-speaking defendants – how could they?

So what’s the real point of this courtroom charade that distracts prosecutors and defenders from more serious violations? Maybe, as another federal public defender alluded, the criminalization of migrants is driven (dare I say it?) by profit. Migrants with prior criminal records face longer prison terms at the private facilities under contract with the federal Bureau of Prisons. Since private prisons get paid (our tax-money!) for each bed used, they seek to detain more people for longer periods of time. And their friends in elected government know it.

The federal public defender did not criticize the Department of Homeland Security for how it handles juvenile migrants, age 16 and younger. Some are actually sent to their families in the United States until DHS can locate their families in Mexico. And she was pleased that the courts had acceded to her office’s request and required the attorneys for these migrants (at $125/hour in taxpayer money) to speak Spanish.

 The magistrate, a gruff round man easily in his sixties, heard that the people sitting in the back of his courtroom were law students. “So, any questions?” he asks us afterwards. “Does the punishment fit the crime?” we ask. “Well, no,” he says. “These guys are getting a deal. The felony would get them two years in prison but they take a plea bargain for thirty days. People say they want a just sentence, but really they want a lenient sentence.”

“But you’re defining ‘just’ from the perspective of the statute,” I protest. He replies, “What should I give you to read…. Yes, the Euthyphro. Have you read it? I reread it every two years.” Plato’s famous dialogue queries the source of justice: “Is the pious loved by the gods because it is pious? Or is it pious because it is loved by the gods?” His point: Who the hell knows.

“Do you believe these defendants are getting their day in court?” I ask. “Oh sure,” he says. The federal public defender behind him shakes his head and we try not to laugh. The magistrate continues: “They meet with their lawyer, they learn about the plea. But they’ve got this whole courtroom hearing. It sounds too good to be true. They fear prison time. I get them through it fast and they see the plea bargain is for real. It reduces the agony.”

The public defender later disagrees: “Yeah, he’s proud of his speed, but in our opinion, that’s not something to be proud of.” Why not? It’s not like these defendants would exchange the plea for a trial, which would expose them to prison time. Well, first, she explains, we’re worried about actually deporting American citizens in the rush. Some migrants can receive “derivative citizenship” if a grandparent was a citizen. Second, we have Constitutional requirements. Do these defendants really understand their rights under our law? Third, “if the point is to make an impression, to let them know what they’re facing if they return, why speed them through?” For their own purposes, it doesn’t make sense.

The magistrate suggests broader immigration reforms: “Americans presume that everyone wants to be a citizen and immigrate, but that’s not true. People actually like their own country and language. They come here to work and save enough money for a house or a family member’s operation or something, and then they want to return. So we need more work visas.”

Our other problem, he says, is our addiction to drugs. Mexican cops are dying because of it.

“Is it difficult to sentence people to prison time, given your ideas about what they’re coming for?” one of us asks. “It is never easy to send someone to prison,” he says. “If it is, you shouldn’t be a judge. They get medical care in prison, but that’s still 180 days that they’re not earning money for their family.” Yeah, he concedes after some nudging, it would at least be “simplest” if people avoided criminal charges altogether. But he’s not the only player, he explains; there’s the executive and there’s Congress. And they have ideas, too.

He sounds less like a judge, and more like a cog in vast, automated system.

A Border Patrol helicopter circled us for a while.

We also meet with Border Patrol (formally this time). They tell us that since 9/11, “we’re not interested in the poor guy who’s come to pick lettuce in California,” but they also tell us that in 2010, they apprehended 210,000 undocumented people in the Tucson sector alone. “You don’t know who people are until you arrest them,” one officer explains. The vast majority of migrants – all but 2.5% - are Mexican. The agents discuss their frustration with sending people back over the border only to catch them again – and again and again. So they’ve started “lateral deportations”: Some people caught in Arizona will be deported to the California border or even flown into Mexico’s interior. And of course, they’ve started prosecuting migrants, too.

“Is it your belief,” we ask, “that leaving food and water for migrants aids and abets illegal immigration?” The Tucson section chief, who oversees 700 agents, cuts the tension by saying: “Do I have to answer that?” After all their tough talk on border security and terrorist threats, we need the laugh. That’s for the courts, he says, and he names a 2-1 decision (621 F.3d 914) at the Ninth Circuit tossing out the littering conviction of a NMD volunteer for putting out gallons of water.

But the courts aside, does providing food and water to migrants “aid and abet”? (Those classic words are not actually in the statute, 8 U.S.C. § 1324, but they’re magical in a way.) Those six migrants who visited the No More Deaths camp and left re-hydrated had a better shot of reaching Tucson and evading Border Patrol. But that’s simply because they’re not going to die. Their successful entry into the United States might be seen as the byproduct of simply staying alive.

Mt. Baboquivari, the tall peak to the left, orients migrants.

Okay, well, do migrants embark on this trek because they know No More Deaths leaves water on the trail? Do NMD activities increase border crossings? Our NMD guide John part-laughs, part-laments in reply: “It’s a vast desert out there; a couple gallons is a drop in the bucket.” And it’s a rather empty bucket, we remember, knowing that another 40 bodies were recovered in the last four months of 2010. Whether NMD’s gallons actually increase the number of undocumented immigrants is an empirical question, and it will probably never be answered. But it seems plain to me that potential migrants, seeking a better life, don’t come because of NMD’s gallons, if they know about them at all. As the song says: “There ain’t no mountain high enough, ain’t no valley low enough, ain’t no river wide enough, to keep me from getting to you.”

NMD itself, as an organization, does not seem to worry about the “aid and abet” question: their work is humanitarian, the political ramifications be damned. But I think about it because, well, I am not an anarchist: I believe in the necessity of borders and the value of citizenship. Whether it’s schools or banking regulations, I don’t think we can build just institutions that represent us without imposing some restrictions to determine who’s in and who’s out. So the question for me is not the existence of such restrictions, but their fairness. How do our immigration laws measure up? Why should Mexican citizens have to wait decades longer to get legal residency than non-Mexicans?

Impatient with the pace of federal reforms, Arizona has embarked on its own anti-immigrant campaign, starting famously with SB1070. One provision, among others, requires a police officer to determine the immigration status of anyone stopped, detained, or arrested “if there is a reasonable suspicion that the person is unlawfully present in the United States.” (A federal court in July 2010 decided that this section was likely preempted by federal law and enjoined it.)

SB1070 was just the beginning. Arizona has become “Aryanzona” or “Errorzona” (according to activist buttons we saw) as anti-immigrant fervor takes over the Arizona statehouse. We analyzed 18 pending anti-immigrant bills for the Coalición de Derechos Humanos, a human rights legal organization in Tucson. Most of them teeter between laughable and terrifying. One would create a separate Arizona citizenship (for children of US citizens or legal residents only); one taxes international money transfers (penalizing migrants trying to send money home); and another amends the state constitution to prohibit judges from considering international law.

One “omnibus” bill, SB1611, makes it virtually impossible for undocumented people to exist in Arizona. It requires proof of legal status to enroll in any K-12 school or college; to buy, register, or even drive a car (or you go to jail for 30 days and forfeit your vehicle); or to obtain any license, including a marriage license. Another bill requires medical personnel to check and report patients’ legal statuses before treating them. (How many people will forego necessary medical care if this bill passes?) One bill, now a law, authorizes the Arizona Senate president and House speaker to hire lawyers, at taxpayer expense, to represent their respective chambers in defending SB1070.

All have passed out of initial committees. Most, I expect, will become law. All – let us hope (me especially, as the grandchild of immigrants) – will be condemned by future generations.  [Update: Five of the major bills, including the omnibus bill, were voted down by the AZ Senate on March 17.]

We had tough moments: the death sites (“they knew it was her from the distinctive green shoes”), the jiggle of 70 leg shackles in the courtroom, the disgrace of locking people up to turn a profit. And there was the purely physical: frigid nights, makeshift bathrooms, heavy backpacks. “I can’t wait to get back to law school so we can sleep in again,” one person half-joked.

But we also hiked through stunning scenery, rode in the beds of pick-up trucks, made smores by the campfire, and tilted our heads back to the stars. We belted “my hips don’t lie!” with Shakira and Wyclef in our 15-person van, took midnight trips to taco-trucks, and played soccer at the NMD camp, at highway rest-stops, and outside our convent in the city. We danced at Tucson’s “Hotel Congress” nightclub for hours until one day turned into the next. “Stay fierce,” advised the singer.

I remember thinking as we danced: This morning I woke up in Arivaca, 12 miles from the Mexico border, and ate breakfast in the company of people who are now walking for the chance (nothing guaranteed) of a better life. They’re back on the trails, trying to avoid cacti, trying to stay invisible. And I am dancing at “Hotel Congress”; it’s my spring break; I’m tipsy; and my government has provided me with tens of thousands of dollars in loans to furnish an education.

The contrast is stark. So activists sometimes blame themselves, feeling guilty for their relative affluence and their fun. They think: How can we melt marshmallows over chocolate or dance in nightclubs when others are walking in the desert? Yes, these juxtapositions are real, but they don’t mean we must live in constant mourning or adopt aesthetic routines like desert migrants. That’s not what “solidarity” means. Feeling guilty for our fun saps our will to live. It hinders our ability to stand up for marginalized others and it makes a mockery of the life we desire for them.

It was not always obvious in the moment, since the desert sun makes it hard to think in complete sentences. But the work, I realize, is essentially hopeful, despite the morbid nature of our task (the organization, after all, is called “No More Deaths”). It is hopeful in reflecting not just the desperation of these migrants (what led them to make this desert trek?), but also their aspirations for a better life. No one believes in America quite like immigrants do.

Putting out water is not the solution to our immigration dilemma. But it does not purport to be. It’s just a simple idea that I can embrace without caveats: Let there be no more deaths.

  

My tripmates were excellent photographers.  Photos courtesy of them.

For the idea of a world

The webcomic, "A Softer World," expounds:

There ought to be a word for the things we do, not because we want to, but because we want to be the kind of person who wants to.

To be comical, it adds: "In bed."  In bed or beyond it, we strive to live up to our idea(l) of ourselves, to perform that persona.  In the age of facebook and chosen identities, that seems particularly true.

And there ought also to be a word for the things we do, not because they make sense, and not because we want to, but because want to want to (yep, not a typo), because they would make sense in the kind of world we want to inhabit.  It's the feeling that makes you act "against your better judgment" (whatever that means), when you kiss someone spontaneously, or choose to walk through a "bad" neighborhood.  Your gut nags: "Wait, be careful!"  But your brain says, "No, I refuse to acquiesce to the fear, the caution, the profiling.  That's not the world I want to live in."

For the idea of a world.  Maybe not the world we have.  But the world we can sometimes imagine.

So here's a question I got in recent interviews: "What made you want to teach in a maximum-security prison?"  And what should I say?  Curiosity?  Social justice?  Or: For my idea of a world, a world in which people do not leave vulnerable others to rot away in prisons.

Is this new world, too, a kind of performance?  If we perform it enough, will we create it?

(I shouldn't write blog posts on Friday nights.)

Social animal

Law school's a grind. But even with a competitive curve (where my academic success depends on others' failure), it does not have to be the ruthless me-first environment it's presumed to be.

David Brook's essay, "Social Animal," in the New Yorker reminds me why that's so important.  It's an antidote to my past reflections on the pursuit of happiness. I wrote that happiness is not all it's cracked up to be, that we should stop treating happiness as an end.  It eludes those who seek it, so ignore it if you can.  Treat it as the byproduct of a meaningful life.  Yep, just try to live a meaningful life.  But what is a meaningful life?  And its corollary (dare I ask): What is the meaning of life?

David Brooks, citing social psychology research, takes a crack at it:

Intelligence, academic performance, and prestigious schools don’t correlate well with fulfillment, or even with outstanding accomplishment. The traits that do make a difference are poorly understood, and can’t be taught in a classroom, no matter what the tuition: the ability to understand and inspire people; to read situations and discern the underlying patterns; to build trusting relationships; to recognize and correct one’s shortcomings; to imagine alternate futures.

Brooks illustrates the point through an archetype, named Harold.  Snippets:

[Harold] didn’t dazzle his teachers with academic brilliance, but, even in kindergarten, he could tell you who in his class was friends with whom; he was aware of social networks.

By the time Harold was in his mid-twenties, he was well on his way toward a happy and fulfilling life, and the building blocks of his happiness had little to do with the lines on his résumé. ... According to research by Daniel Kahneman, Alan B. Krueger, and others, the daily activities most closely associated with happiness are social—having sex, socializing after work, and having dinner with friends. Many of the professions that correlate most closely with happiness are also social—a corporate manager, a hairdresser.

Harold had the sense that he had been trained to react in all sorts of stupid ways. He had been trained, as a guy, to be self-contained and smart and rational, and to avoid sentimentality. Yet maybe sentiments were at the core of everything. He’d been taught to think vertically, moving ever upward, whereas maybe the most productive connections were horizontal, with peers.

The Bush v. Gore generation

Here's something I meant to write last month, at the 10-year anniversary of Bush v. Gore...

We're sometimes called the 9/11 generation. And that's right: the first Americans to die in Afghanistan and Iraq were precisely my age; and the wars, the lies, the Patriot Act, Gitmo and Abu Ghraib, together created a new reality.  But on this 10-year anniversary, I've been thinking: Perhaps the era of disillusionment started a year before 9/11: with the meddling of the Supreme Court, 5 votes against 4, at the very institution tasked with protecting "equal justice under law."

Ron Klain, general counsel to the Gore-Lieberman Recount Committee, seems to share that feeling:

Every lawyer (even every cynical one) clings to a deep-seated belief that, when it really, really matters, the system will work: justice will be done, and right will triumph over might in our courts. But I left that room with a horrible feeling that, in the most important case in our lifetimes, the legal system was lurching toward a colossal failure. Ten years later, that feeling hasn’t changed.

I was 16, growing up in the DC suburbs in a policy-minded family.  So Bush v. Gore is not my first political memory: there was Yitzhak Rabin, Newt Gingrich, Monica Lewinsky, Boris Yeltsin.  But it may have been the most lasting, the most inexplicable.  (Who, for goodness sakes, stops the counting of votes?!)  It planted the seed for what matured into a deep (and I would argue, healthy) skepticism about deference for law.  The disillusionment wrought by George W. Bush went deeper than politics; for me - and I think, a certain segment of my generation - it was a coming of age.

From the March 15, 2010, New Yorker.

Philanthropy, 2010 edition

Here are my two cents in philanthropy, 2010 edition (see 2007; 2008).

I started with Cincinnati, the Queen City, the 'Nati, my home for two years... Think globally, act locally, as they say.  I gave to the Ohio Justice & Policy Center, my former employer, a zealous legal outfit that takes prisoners' cases (health care, reeentry, solitary confinement of juveniles, inadequate public defense) often ignored by the mainstream.  If you have a few dollars to spare, I know OJPC will put them to good use.

I gave to the Cincinnati Interfaith Workers' Center, which advocates for low-wage and immigrant workers.  I know their staff and they don't drive expensive cars.  The Workers' Center forces employers to finally pay up after stealing from immigrant workers (documented and undocumented) who, without the Workers' Center, would be too scared to report the thefts.  On average, low-wage workers are cheated of $51 a week.

Other orgs on my radar: Partners in Health, Doctors without Borders, and Project Muso.

Where have you given in 2010?  Besides, of course, to fund tax cuts for the wealthy.  Tax cuts mean slimmer budgets, which means underfunded social services and porous safety nets (first to get cut), which means private donors must fund the work that the government (read: "the public") should have funded itself.

The world spins

It has not been a good week to have law school exams.  The world did not stop spinning.

In Georgia, thousands of prisoners across seven prisons sat down in their cells to nonviolently protest their slavery-like conditions.  In the words of the 13th Amendment, "Neither slavery nor involuntary servitude . . . shall exist within the United States."  Hidden in the ellipses, however, is an exception: "except as a punishment for crime."  It seems prisoners have had enough.  I bet prisons across the country are clamping down, lest others get ideas.  An Ohio prisoner I once interviewed spent months in solitary confinement for trying to organize a work stoppage.

In London, WikiLeaks founder Julian Assange became perhaps the first person to spend a week in jail for "questioning" related to sexual assault.  Apparently no charges have been filed (yet).  WikiLeaks has sidelined the sexual assault issue, but nuanced writers have managed to criticize the politically motivated prosecution without trivializing the seriousness of sexual violence.

In Washington today, the Senate voted against the DREAM Act and in favor of repealing "Don't Ask, Don't Tell," finally answering the question of whom the Republicans hate more: immigrants or queers.  So, congratulations, queers.  Now you too can forcibly occupy foreign lands - or at least do so openly.  Nothing says "empowerment" quite like the opportunity to oppress others.  Half-joking aside, of course I support the repeal.  The military changes hearts and minds - if not in Iraq, then here at home.  African Americans once turned to the military to assert their own social rights.

I finished exams in torts and Constitutional law.  Last up: property.

Magical kingdom in the sky

This photo, which I took in Lesotho two years ago, came to mind as I perused submissions to National Geographic's photography contest.  Lesotho, strangely embedded within South Africa, is the only country entirely above 1000 meters.  It has rightly been dubbed "the magical kingdom in the sky."  And for an exhausted traveler leaving tumultuous South Africa, it was magical.

(Click for larger size. Oh, all rights reserved.)

We encountered these Basotho shepherds on Hodgken's Peak, also taking in the 360-degree view.  At 3256 meters, I struggled for air, having just arrived from Durban and the Indian Ocean coast. 

It's been over two years, but I think frequently of that 56-day trek through South Africa, Lesotho, Namibia, Botswana, Zimbabwe, and Zambia (whew!).  It was a fantasy, traveling as a modern nomad with a map, a pack, and my hitchhiker's thumb.  From my current perch in Michigan - with legal textbooks now spread across my desk - it might feel like another existence.  But it doesn't.  I am still basically the same person I was two years ago.  As we grow older, it seems, we grow slower.

Romanticizing romance

xkcd asks: Why do we romanticize young love?

Because we're not heartless enough to ridicule it.

Because we've all been that shallow, or at least sounded that silly.

Because it'd be too crude to romanticize the adolescent sex drive.

Because love itself seemed simpler then.

Because our memories are poor.

What will future generations condemn us for?

One of my professors jokes that if he wants to see a bunch of law students pick up their pens, he'll say, "The court lays out a three-part test..."  Three is perhaps the perfect number: complex enough to be more than obvious, simple enough that you might actually try to remember the parts.

Ethicist Kwame Anthony Appiah proposes one such three-part test to answer the question, "What will future generations condemn us for?" A practice we'll likely come to regret has these features:

First, people have already heard the arguments against the practice. The case against slavery didn't emerge in a blinding moment of moral clarity, for instance; it had been around for centuries.  Second, defenders of the custom tend not to offer moral counterarguments but instead invoke tradition, human nature or necessity. (As in, "We've always had slaves, and how could we grow cotton without them?")  And third, supporters engage in what one might call strategic ignorance, avoiding truths that might force them to face the evils in which they're complicit.

To recap, that's (a) present opposition, (b) amoral rejoinders, and (c) strategic ignorance.

That seems right to me, and I'd add a tautological fourth.  The victims of any abhorrent practice - whether prisoners, animals, or the elderly - are frequently disrespected.  We abuse those we consider beneath us, and in a justificatory circular twist, we diminish those whom we abuse.  But anyway, Appiah offers four "contenders" for future widespread condemnation: the prison system, industrial meat production, institutionalizing the elderly, and environmental neglect.  I'd add homophobia and torture (in the near-future) and xenophobia and war (in the distant).

Also, I'm addicted to New Yorker cartoons.  This one's from the January 4, 2010 issue.

A blog-tastic news round-up

The transition to law school has been tough - logistically (notebooks, binders, classes), mentally (losing job responsibilities and purpose), and socially (leaving a city I love). I have not (so far?) found soulmates in Ann Arbor, as I have been lucky to find elsewhere in this meandering life.

So that leaves time to blog the news:

Google announced that it will compensate gay and lesbian employees for the higher fees they pay on domestic partners' health benefits, proving again that queer people get all the perks. (h/t Hope)

The UN, reviewing Israel's assault on the Gaza-bound Mavi Marmara, found that one victim, Furkan Dogan, a 19-year-old US citizen of Turkish descent, "was filming with a small video camera on the top deck ... when he was shot twice in the head ... while lying on the ground." No mainstream news coverage or US response, but it's not like he was killed by terrorists. Oh, wait. (h/t Sushil)

Georgia killed prisoner Brandon Rhode on Monday by lethal injection, just one week after rushing the 31-year-old to the hospital for attempting suicide.  So much for "You can't fire me, I quit."

The supposedly liberal Ninth Circuit Court of Appeals, whose jurisdiction covers nine Western states, tossed out the Fourth Amendment ruled that police can secretly place a GPS device on a person's car without a warrant. I'm sure the police will only use their new power to track really serious offenders, like pot-heads. Because of a circuit split, the case could reach the Supremes.

In Vaughan v. Menlove, an 1837 English case that I read today, the court held that being stupid is no excuse. Should the defendant be responsible "for the misfortune of not possessing the highest order of intelligence"?  The defense argued that the court should judge only if the defendant acted "to the best of his judgment."  The court disagreed and invented the ideal "reasonable person."

So that's all the obnoxiousness that's fit to print tonight.  That was fun. I'm always trying to take myself less seriously in discussing politics, law, war, etc.  Moving to a new town is a great time to remember that no one wants to hang out with the fellow who's too obsessed with "justice" to smile.

My name is America, and I'm an alcoholic

Much of the commentary I consume each day just fades into the background.  But stray pieces sometimes beg to be remembered.  So, last week, Nicholas Kristof wrote a column apologizing to American-Muslims for the recent spike in hate speech.  He titled the column, “Is This America?”

Over at Killing the Buddha, Garrett Baer replied, "Yes, Mr. Kristof, This Is America."  An excerpt:

Rather than viewing the “shameful interning of Japanese-Americans during World War II, or the disgraceful refusal to accept Jewish refugees from Nazi Europe” as rare, exceptional tests in American history, we need to view those events as constitutive elements of the American experience. Was America not American prior to the abolishing of slavery? Was America not American prior to the Voting Rights Act of 1965, during the Tuskegee syphilis experiment, the Zoot Suit Riots, or the pursuit of Manifest Destiny? Anti-miscegenation laws were belatedly toppled in the ’60s, but today 37% of Americans would not approve of a family member marrying outside of his or her race. Are those people not American?

"We have to stop treating American bigotry as a series of exceptions," concludes Baer, "and finally deal with it as a chronic condition."  As I read appalling Supreme Court cases in my Constitutional law course, such as a 1918 decision invalidating child labor protections, I can see that our struggles over Park51 (the "Ground Zero Mosque") or Cincinnati's racist war on marijuana are not aberrant flares but manifestations of a familiar legacy.  So kudos to Baer for placing current events within the long arc of American history, which - as MLK would remind us - at least bends toward justice.

Nissan subverts species supremacy

People are fascinated by vegetarianism - and I think, somewhat afraid of it.  Every vegetarian has been asked the "why?" question countless times - enough times that if you're like me, you allow your answers to vary.  So, sometimes it's about stopping the cruelty to the 27 billion animals killed in the United States each year. Sometimes it's about protesting the unsafe working conditions of slaughterhouse laborers.  And sometimes it's about saving the planet, as animal agriculture generates more greenhouse gas emissions than all forms of transportation combined.

The latter two answers - about working conditions and climate change - provoke some guilt in the meat-eaters I talk to, or they make me feel uncomfortably holier-than-thou, which is why I try to avoid these conversations.  But the first answer, about animal rights, affects people in a different way.  It doesn't make them feel guilty about their eating choices; it makes them feel threatened, because (I think) asserting the natural rights of animals challenges our dominion over the little critters.  It subverts a sense of human supremacy that dates back to the Bible, when the god character creates "every beast of the field and every bird of the air, and brought them to the man to see what he would call them; and whatever the man called every living creature, that was its name."

So kudos to Nissan for introducing its new electric car, Leaf, with a commercial that strikes at that hallowed sense of supremacy.  Humans are just one animal upon the earth, one that must live in harmony with it, not over and above it.  The melting ice-caps highlight the earth's fragility; it reminds us that our technological advances have not arrived in a vacuum but upon our own delicate planet.  Human choices affect others, even non-human others, and the revolutionary, even radical, message of this commercial, the one that makes our hair rise as the polar bear approaches the man and embraces him in that beautiful "awwww" moment, is that we should care.



The ad concludes: "Innovation for the planet, innovation for all."

Reaching for the stars

"What are you going to do with it?"  They mean a law degree.

I usually say I want to protect the civil rights of incarcerated people, or defend the poor as a public defender.  Or if I am trying to startle someone, especially someone who's judged me by my short hair and tucked-in shirt, I might say that I want to defend the guilty from the abuse of the state.

Regardless, every time I answer, I build up expectations that I will actually undertake such a career, because if not, I'd have to admit that I had deluded myself and misled others.  Answering the question is thus a shield against any temptation to follow a more lucrative path of lesser resistance.  And yes, it also makes it harder to simply change my mind.  But that's a risk I'll take.  If we're not devoted to something, even an evolving something, we're devoted to nothing.

At the very least, if I do change my mind, I can always say:

Is law school a trade school?

I hope so, because I want to be useful to people, esp. people in prison, prison facing prison, and people dumped from prisons to homelessness. We can't be just a bunch of anti-somethings - anti-imperialist, anti-racist,  etc.  We must actually work toward the dream of shared prosperity.

A friend Chelsea gave me an essay, titled, "Leveraging the Academy: Suggestions for Radical Grad Students and Radicals Considering Grad School," by Chris Dixon and Alexis Shotwell. Graduate school, they write, "often creates exhausted, insecure, status-consciousness people who distrust their own judgments."  It's not surprising then, that "[t]hough radical ideas sometimes show up in academic discourse, they almost always originate elsewhere." Somewhat comically, the authors write in academic jargon - for example, describing the university as "a nexus through which systems of power manifest." (Ha, there's no simpler way of saying that? It doesn't bode well for me if even these self-identifying radicals get swept up in the temptation of trying to sound smart.)

Anyway, the point is to screw thinking for its own sake.

Albert Camus expresses the idea beautifully, as usual.  From The Plague (119):

"Do you believe in God, Doctor?"
Again the question was put in an ordinary tone. But this time Rieux took longer to find the answer.
"No - but what does that really mean? I'm fumbling in the dark, struggling to make something out. But I've long ceased finding that original."
"Isn't that it - the gulf between Paneloux and you?"
"I doubt it. Paneloux is a man of learning, a scholar. He hasn't come in contact with death; that's why he can speak with such assurance of the truth - with a capital T. But every country priest who visits his parishioners and has heard a man gasping for breath on his deathbed thinks as I do. He'd try to relieve human suffering before trying to point out its excellence."

Torts, property, Constitutional law, oh my!

After four years in the workforce, I am going back to school.  Law school starts tomorrow.

I've been preparing for a struggle, for the discomfort of immersing myself a fairly narrow way of thinking.  In the ivory tower, we're tempted to believe that everyone shares our middle-class sensibilities, that it's all about the law, its procedures, its hierarchy.  It becomes easy to normalize injustice, to lose the outrage, to feel entitled to the lucrative careers that already have our names on them.  So part of me feels that the next three years will be Eli v. Law School.  But I also think that it'll be fun, that law school can be empowering in good ways.  Law school and I can be on the same team.  And with that optimism, I hope the gulp in my throat is just adrenaline hiding out.

 

Here we aren't, so quickly

Everyone seems to have an opinion about Jonathan Safran Foer. I found his first novel, Everything is Illuminated, as others did: a bit too clever and basically a pain in the ass. I enjoyed the hunt for the keyhole in his second novel, Extremely Loud and Incredibly Close, but I didn't write home about it. His third book, Eating Animals, an artistic journalistic account of factory farms and a plea for vegetarianism, was wise and deeply appreciated. (More about that some other time.)

For now, I just want to officially join his fan club - thanks to a magazine piece.

"Here We Aren't, So Quickly," was just plain brilliant. The story (or maybe it's really a poem) follows the life of a couple ("I" and "you") in piecemeal brevity, gracing just two pages of the July 14th New Yorker. Its blog-worthiness, I think, draws from its use of negatives: how JSF highlights substance by noting absence and dissatisfaction. "I was just going through a tunnel whenever my mother called," he writes. "He was never happy unless held," he writes, suddenly and nonchalantly introducing a child. Then towards the end, in a paragraph that makes you go, "wow":

And here we aren’t, so quickly: I’m not twenty-six and you’re not sixty. I’m not forty-five or eighty-three, not being hoisted onto the shoulders of anybody wading into any sea. I’m not learning chess, and you’re not losing your virginity. You’re not stacking pebbles on gravestones; I’m not being stolen from my resting mother’s arms. Why didn’t you lose your virginity to me? Why didn’t we enter the intersection one thousandth of a second sooner, and die instead of die laughing? Everything else happened - why not the things that could have?

That connected the dots somehow, though I can't quite express why it made my hair rise. I've always been an amateur at literary criticism, but in vague terms, it speaks (to me) of the myth of fate, the sovereignty of whatever, the pursuit of pleasure, the mendacity of struggle, day-in amd day-out. He writes: "They encouraged us to buy insurance. We had sex to have orgasms. I went to the gym to go somewhere." Later: "We couldn’t wait for the beginnings and ends of vacations."

I've been skeptical of the literary prowess of this young author with three parts of a name. But this piece sucked me in like the great vacuum it evokes. You can read it, probably illegally, here.

William Kunstler film

"Some kids fear ghosts and monsters," says Emily Kunstler in an interview with The New Yorker. "I feared the police, the President, and the FBI."

Emily and her sister Sarah Kunstler just directed a film titled, "William Kunstler: Disturbing the Universe," about their late father, often called the most loved and most hated lawyer in America. William Kunstler's many (in)famous clients included MLK, Angela Davis, the Chicago Seven, the Catonsville Nine, the Black Panthers, the Weather Underground, and the Attica Prison rioters.

I have yet to see the 90-minute film, available for free on PBS. But I am excited about it.

Here's the trailer:



Here's the transcript from the February 1970 speech excerpted in the trailer:

And that is the terrible myth of organized society, that everything that's done through the established system is legal — and that word has a powerful psychological impact. It makes people believe that there is an order to life, and an order to a system, and that a person that goes through this order and is convicted, has gotten all that is due him. And therefore society can turn its conscience off, and look to other things and other times.

And that's the terrible thing about these past trials, is that they have this aura of legitimacy, this aura of legality. I suspect that better men than the world has known and more of them, have gone to their deaths through a legal system than through all the illegalities in the history of man.

Arguments for prison reform: What works?

I've been working for a non-profit law office on a project that if successful, will help prisoners with serious mental illness continue their mental health care after their release. While protecting the civil rights of incarcerated people can be controversial, this work on behalf of people with mental illness at least evokes some sympathy. Still, when pitching my work to strangers, I tend to appeal first to dollars saved and potential crimes averted, not to anything "radical" or moralistic, like fulfilling our responsibility to the vulnerable.

Is that a terrible thing? We certainly don’t lack for good data on why dumping prisoners with mental illness at homeless shelters is a public-policy-FAIL of grotesque proportions. Our criminal justice policy, to be "smart-on-crime," should rely on such evidence. The public should know that people who were enrolled in Medicaid when they left prison were 16% less likely (than those who were not) to be rearrested over the next year and twice as likely to use mental health services. Or that release planning actually reduces the financial burden on state and local governments.

I don't shy from asserting that prisoners should leave at least no worse off than when they arrived, that those who approach prisons with punitive goals exhibit the very cruelty that they purport to punish. But while I view prisons through a moral prism, I have learned to keep that deeper motivation separate from our public policy agenda, even as I lament that our arguments have become beholden to the trump card of "public safety" and the logic of dollars and cents. Behind the wonkery, we're talking about some of our most impoverished and vulnerable neighbors.

But even I grow tired of righteous, do-the-right-thing appeals to my conscience. It is abusing to see mailer after mailer depicting the wide eyes and starvation-induced protruded stomachs of orphaned African children, with their "Your donation can make a difference" zingers. At times I am probably more likely to toss them away and spare myself the agony of recognizing privilege, than to pull out my checkbook and send twenty bucks to such holier-than-thou organizations.

"Revolution must be preceded by reformation," Saul Alinsky would say. "To assume that a political revolution can survive without the supporting base of a popular reformation is to ask for the impossible in politics" (xxi). To change minds and earn people's attention, we have to show them how the plight of the incarcerated mentally ill affects their own lives - that is, their safety, their tax dollars. Arguing from morality risks alienating would-be supporters under a crushing ideal.

Dewy-eyed for justice

It's merely an aside in Jonathan Franzen's story, Agreeable, but it's a meaningful one. From a literary standpoint, the conversation between Patty and her father Ray serves to illustrate their emotional and intellectual distance. And from a legal/ethical standpoint, their conversation draws out and (I think) condemns the all-too-frequent collusion between lawyers of supposedly opposing sides in criminal cases. Ray is a defense attorney (if in name only) in Westchester County, NY.

Here's the excerpt from the May 31 issue of The New Yorker:

In tenth grade, for a school project, Patty sat in on two trials that her dad was part of. One was a case against an unemployed Yonkers man who had drunk too much on Puerto Rican Day and gone looking for his wife’s brother, intending to cut him with a knife, but hadn’t found him and had instead cut up a stranger in a bar. Not only Ray but the judge and even the prosecutor seemed amused by the defendant’s haplessness and stupidity. They kept exchanging little not-quite winks. As if misery and disfigurement and jail time were all just a lower-class sideshow designed to perk up their otherwise boring day.

On the train ride home, Patty asked her dad whose side he was on.

“Ha, good question,” he answered. “You have to understand, my client is a liar. The victim is a liar. And the bar owner is a liar. They’re all liars. Of course, my client is entitled to a vigorous defense. But you have to try to serve justice, too. Sometimes the P.A. [prosecutor] and the judge and I are working together as much as the P.A. is working with the victim or I’m working with the defendant. You’ve heard of our adversarial system of justice?”

“Yes.”

“Well. Sometimes the P.A. and the judge and I all have the same adversary. We try to sort out the facts and avoid a miscarriage. Although don’t, uh. Don’t put that in your paper.”

“I thought sorting out facts was what the grand jury and the jury are for.”

“That’s right. Put that in your paper. Trial by a jury of your peers. That’s important.”

“But most of your clients are innocent, right?”

“Not many of them deserve as bad a punishment as somebody’s trying to give them.”

“But a lot of them are completely innocent, right? Mommy says they have trouble with the language, or the police aren’t careful about who they arrest, and there’s prejudice against them, and lack of opportunity.”

“All of that is entirely true, Pattycakes. Nevertheless, uh. Your mother can be somewhat dewy-eyed.”

Client advocacy deserves more than lip service. Yet Ray tries to pass off his unenthusiastic approach not only as justifiable but as actually also commendable, as being somehow in the service of justice. "Of course, my client is entitled to a vigorous defense," he says. "But you have to try to serve justice, too." That is, you have to figure out who's guilty, who's telling the truth. But attorneys, particularly defense attorneys, are not supposed to serve as judges and juries. Their obligation is to the client - maybe guilty but always human, always more than the crime.

Ray does tell Patty that his clients tend not to deserve the harsh sentences reflexively sought by prosecutors. But he misses the larger discriminatory context of our criminal justice system - its targeting of the poor and historically marginalized. Ray doesn't appreciate that the zealous advocacy of a lawyer is all that protects a defendant from the awesome power of the police, the prosecutor, and the state to deprive people of liberty, that most basic American idea.

"Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have," said Illinois Supreme Court Justice Walter Schaefer, quoted in Anthony Lewis's Gideon's Trumpet. Lewis explains: "The defendant cannot be expected to effectively assert his right to an impartial jury, his right to keep out illegal evidence, his right to challenge the voluntary nature of a confession" (108). Gideon's Trumpet tells the story of the landmark 1963 U.S. Supreme Court case, Gideon v. Wainwright, that finally required courts to provide counsel to indigent defendants.

To sum up, "Pattycakes" should listen to her "dewy-eyed" mother.

Whites smoke pot, blacks get arrested

African Americans are six times more likely than whites to be arrested for smoking pot in Cincinnati. In a city that's 46.5% black, those arrested for marijuana have been 85% black and 14% white. Maybe blacks use marijuana at a higher rate? No - perhaps even the opposite. Some 44% of whites, compared to 39% of blacks, have used marijuana, according to federal stats. Eleven to 12% of both groups used marijuana the previous year.

That's the most astounding finding I uncovered while researching an article for Cincinnati's Streetvibes, the newspaper published by the homeless coalition. And that racial disparity isn't the only failure of the anti-marijuana law that Cincinnati's city council passed four years ago.

In 2006, the city council wanted to give the police additional powers of search and seizure, so they elevated possession of a small amount of marijuana from a minor misdemeanor to a fourth-degree misdemeanor (M4). You're cited for a minor misdemeanor but arrested for an M4. An arrest entails a search. The city council reasoned that if police can arrest marijuana users, then they could conduct more searches, which would potentially turn up more guns and harder drugs.

Public policy FAIL. It didn't work.

Police searches have not, by and large, turned up guns or additional drugs. City police brought in just 2% of their annual drug haul through marijuana arrests. (Unsurprisingly, despite the assurances of council-members, a law targeting petty users turned up a small amount of drugs.) As for guns, police confiscated one gun in every 53 marijuana arrests on average , compared to one gun in every 33 arrests total. Potheads harbored guns less frequently than other arrestees.

Pot criminalization has not made us safer. In the year after the ordinance became law, violent crime in Cincinnati actually increased – murders by 16%, robberies by 44%. That may not be an accident. Economist-researchers in one study (Journal of Drug Issues) hypothesized that police crackdowns on marijuana disrupted flow, which increased demand for the limited supply, which in turn raised prices and led users to commit more burglaries and robberies in search of cash.

The racial gap draws, I think, from geography and police attention: In 2009, District 1 (a largely black area) posted 29% of the marijuana arrests with just 6% of the city’s population. District 2 (a largely white area) posted near-opposite numbers: 8% of the arrests with 26% of the population.

In the last four years, the law has needlessly criminalized thousands of Cincinnatians - some 13,000. It has also raised the burden on an already overcrowded court and jail system. Before the law, marijuana possession was a pay-out ticket, explicitly non-criminal, with a maximum $100 fine. A fourth-degree misdemeanor is a much bigger deal, carrying up to 30 days in jail.

So that's the gist. Read the whole piece here. I have a dream in which city council realizes its folly and repeals the law before the Cincinnati police department can celebrate a fifth year of easy arrests. Sometimes I'm optimistic. You don't have to support legalization to see the law's harm.

This article was my first foray into "investigative journalism." I pestered police, judges, and council-members for data and comment. There is something magical about uncovering new knowledge. It reminds me of Bennett, a young physics professor in Alan Lightman's Good Benito, rejoicing at a breakthrough: "for those first few moments at his kitchen table, he was alone with his discovery, he knew something true that no one else knew, and he had vast power in the world."