The First Thing We Do, Let’s Kill All The Lawyers

The institution of the Public Defender is being killed off across America, and even in the whirlwind of lies that is the Trump Presidency, it is something we should all be deeply concerned about. There is nothing more important to a free society than the preservation of the Rule of Law, and in the United States, a crucial component of that is the zealous enforcement of the Bill of Rights against the state and federal governments. Public Defenders are probably the most practiced constitutional lawyers in the country.  They protect the 4th, 5th, 6th, 8th and 14th Amendment rights of over 80% of the criminal defendants. However, in recent years, chronic underfunding and mass incarceration have compromised Public Defenders’ ability to properly represent their clients. There are just too many clients and too little time to devote to each of them. This means that most Americans being accused of serious crimes are being deprived of their constitutional rights. That is a very dangerous thing, not just for criminal defendants, but for all of us, because when one of us is deprived of his constitutional rights, it erodes those rights for everyone. If we want to preserve the enforcement of the Bill of Rights, we need to restore the institution of the Public Defender.

Freedom ain’t free in modern America

The two big problems causing the Public Defender crisis are excessive prosecution in poor communities, especially for minor drug crimes, and chronic lack of funding by governments that see public defense as a low priority. The reason over 80% of felony defendants use court-appointed counsel (in cities this means Public Defenders, but in rural areas it can mean local lawyers) is that most felony defendants in the United States are poor. The reasons for this are many, and the subject of a different article, but the trend is consistent across the United States. It is therefore not surprising that the most severe crisis is occurring in the most incarcerated State in America, which is also one of the poorest: Louisiana.

One of the reasons that Louisiana incarcerates so many of its citizens is that it has extremely harsh drug laws. For instance, the current marijuana statute, which was loosened up in 2015, provides that someone found in possession of marijuana shall be imprisoned at hard labor for not more than ten years and have to pay a fine of less than ten thousand dollars. This gives hard-line judges a lot of leeway to penalize defendants. When those defendants do not have sufficient time with their lawyers, they can get undeserved and disproportionate sentences for minor crimes.  Even more worrisome is that they can be fined amounts they cannot afford, and end up in prison when they fall behind on payments.

The lack of adequate public defense means that the rich and the poor in Louisiana receive radically different treatment. Louisiana’s strict drug laws can be navigable for those who can pay, but for those who can’t, there’s no way out. In rural parishes, there often isn’t a full-time public defender at all. Attorneys take on that task as a part-time gig, and excess cases are often distributed by courts to local attorneys who have never tried a criminal case. This disregard is not accidental. While much of the public defense crisis in Louisiana and elsewhere is due to poor funding structures on both State and municipal levels (and in Louisiana’s case a billion dollar budget shortfall), it is also due to years of funding cuts. These cuts keep happening because most people don’t like Public Defenders, and they are perfectly happy to see that funding cut. They are wrong.

Public Defenders are the heroes of the legal profession

Public Defenders spend every day thanklessly defending your rights and mine, working long hours, often at great personal cost, for very little pay. Why do I say they are defending our rights? Because we all have the same rights as Americans, and they are only real if they are enforced when they are inconvenient and unpopular. Public Defenders use the Constitution and other laws to make sure the police are not, say, pulling random people over on the road for no reason (which would be a violation of the 4th Amendment). Now, maybe the Public Defender is defending a guy who turned out to have a pound of heroin in her car, but if she gets that arrest thrown out, it means that next week, when you get pulled over and improperly searched with a loose Adderall in your car and no prescription bottle, your lawyer can say “Judge, we had a case like this last week and this arrest was illegal, just like that one.” Our legal system operates on precedent, and it is good for all of us to make sure that the people trying most of the cases have the time to sit and focus on each case. They make sure all of our rights are not being thrown out the window.

Lawyers make sure we are a nation of laws

The title of this blog post, which is common lawyer joke, is often taken out of context. The line comes from Shakespeare’s Henry VI, Part II, and it is delivered by a would be revolutionary imagining what he will do as soon as he overthrows the government. He’d kill all the lawyers, because they are the people who make everyone else play by the rules. That basically makes us the know it all tattletales of the community, but it is important to have watchdogs to hold everyone accountable. It is the role of the Public Defender to hold the government accountable on behalf of the people and they should be celebrated for it. More importantly, they should be adequately funded. If you’re interested in making a difference, New Orleans Public Defender’s office has recently had to stop taking new felony cases because their funding shortage is so extreme. I have linked to the donation page below, and if you want to support the residents of the most populous city in the most incarcerated State in the Union, I urge you to donate.

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Don’t laugh about “Terror” in Sweden: the results are anything but funny

It never helps to dismiss apparently ridiculous statements from the Trump Administration.  As this blog has previously asserted, they are not as ridiculous as they seem. Donald Trump made what appeared to be a hilarious gaffe during his campaign-style rally in Melbourne, Florida on Saturday. While discussing the difficulties faced by some European countries due to their acceptance of significant number of refugees, Trump implied that there was a refugee-related terrorist incident on Friday, February 17 in Sweden. There wasn’t.  However, that does not matter.  As hilarious as this statement may have seemed to Trump’s detractors, his supporters now believe that the media, which Trump is trying to discredit, is concealing a terrorist attack in Sweden. I would suggest to you that, like the Bowling Green Massacre, this lie, whether it was a mistake or not, contributes to the Trump Administration’s use of Muslims as a Scapegoat to unify his supporters and conceal his incompetence and ignorance of how government works.

The Courts have revealed that Trump can’t deliver

Trump’s scapegoating of Muslims is nothing new.  He famously called for a ban on all Muslims entering the United States. He called for a national registry of Muslims in the United States, including Muslim Americans. It spoke to the not insubstantial percentage of Americans who genuinely fear terrorism from abroad. However, Trump’s plans to unify the country against the threat of “Radical Islamic Terrorism” have been stymied by the Federal Judiciary.  The Executive Order on Immigration banning entry to the US for citizens of 7 Muslim nations didn’t work for anyone.  For Americans who value constitutional rights, the rollout was a disaster and the Order was, at best, overbroad.  For Trump’s supporters, it failed to fulfill a campaign promise to exclude foreign Muslims from the US.

When in doubt, point the finger!

Trump’s, and his lieutenants’, instinct to point the finger when things don’t go their way is pretty consistent with the behavior of Dictators past and present. As this blog has stated elsewhere, active use of scapegoating tends to be inversely proportional to a would-be autocrat’s success.  In other words, if he’s delivering on his policies, no scapegoats are necessary! If he’s not, he’s got to direct the public’s attention elsewhere. Let’s look at an example:

Good old gestating Dictator Nicolás Maduro of Venezuela came up against this very problem last year.  Oil prices were tanking. Inflation was soaring.  Homicides were up. No one was happy with him. What is an autocrat to do? Well, Maduro discovered that three border agents had been ambushed by two men on a motorcycle.  Within hours, this incident, which was not organized and didn’t kill anyone, had become a paramilitary attack, justifying a crackdown on Columbian “smugglers and drug dealers” throughout Venezuela. Of course this crackdown turned into the mass persecution of ordinary Columbians resident in the country, but that is not the point of this article.  The point is that Maduro did it in order to refocus public attention on an unpopular scapegoat in order to distract them from his failures as a leader.

Trump is playing the same game

Trump’s fictional Swedish refugee terrorist is the third fake terrorist the Trump Administration has invented in a single month. First, Kellyanne Conway gave us the Bowling Green Massacre.  Then Sean Spicer told us there was a terror attack in Atlanta.  Now we hear there was a refugee related terror attack in Sweden!  These could all be misstatements, as the White House says. I just don’t think it’s likely that all of them are. Lies this big tend to have a target.  Is it more plausible that Trump and his lieutenants are repeatedly misstating the nature or location of terror attacks, or is it more likely they have discovered that these lies are politically advantageous for them? We already knew that the majority of Trump supporters believe the Bowling Green Massacre actually happened. Now we know they believe an attack happened in Sweden.  The only real question is, exactly what political purpose does this serve? The answer is, they help the Trump Administration scapegoat Muslims in order to misdirect the public, and it’s one of the oldest tricks in the book.

 

The [Free Press] is not the Enemy of the American People, but it still might not be able to stop Trump.

Yesterday afternoon, Donald Trump tweeted “The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!” This is a turning point in Trump’s criticism of the Press. It is no longer just unfair to him, it is our collective enemy. We knew it was coming.  All the signs were there. Throughout the campaign Trump claimed he was running against a “rigged press.”  His supporters adopted a powerful and despised German term, the “Lügenpresse” or lying press, to describe the news outlets that brought down Richard Nixon.  Since his inauguration, he has called those same outlets “Fake News.” Yet still, even if it isn’t surprising, it is still shocking that Donald Trump, as an American President, is running Play #4 in the Dictator’s Playbook, and acting to discredit the Free Press as an institution of our democracy. Here’s what we can expect, the good, the bad, and the ugly.

The Good

The American Press is pretty resilient, and at its best it has been heroic. Recently, our major news outlets have been running down every lead they can to hold Washington accountable, and they have been careful to substantiate each new bombshell story.  But for the Press to be most effective, reporters aren’t the only people who have to demonstrate heroism.  The great thing about our current situation is that we have an ample supply of the secret ingredient to Press effectiveness – whistleblowers .  From the unexpectedly bold National Park Rangers to the many members of the intelligence community leaking to the Press, the material is there for brave reporters and leakers to expose the Trump Administration.

People on the inside of a corrupt and dangerous administration are the ones who have to expose it, and that is happening. The reams of information seeping out of the executive branch have provoked comparisons to Nixon White House during Watergate.  It’s a great comparison, and it’s important to remember that Woodward and Bernstein could not have become Woodward and Bernstein without Deep Throat (Mark Felt) and their many other informants.    The New York Times and the Washington Post, in particular, have been delivering the hard, unbiased, factual reporting they delivered during the Pentagon Papers and Watergate stories.  They are rising to the occasion.  The problem is, 20 years of the scandal-ridden, unfocused 24 hour news cycle started discrediting the press corps before Donald Trump ever put on a red cap.

The Bad

On the day Trump took office, the credibility and effectiveness of the Press was already in pretty bad shape. This problem started before “fake news.” In fact, I would argue that fake news only took hold because the public had already lost faith in the Press. This loss of faith is dangerous, as any possible impeachment scenario will likely rely on evidence discovered by the Press. Two primary factors have left us in a position where the Press is one of two institutions that can hold the Republic together, but it may lack the credibility and effectiveness to do so.The first is the 24 hour scandal cycle, which dulls the public’s ability to separate a real threat from a minor political misstep and the second is the media’s alienation of individuals on the Left, Right, and Center of the ideological spectrum.

The first problem is that the salacious details of Bill Clinton’s sex life started a new Press paradigm of  seeking out and manufacturing scandal.  Gotta keep those ratings up! We impeached a President because he perjured himself over a blowjob.  The Press reported George W.Bush’s use of cocaine as if it were a major scandal.  Howard Dean whooping at a rally brought down his campaign.  To some extent, during Bush’s second term, the scandal manufacturing slowed down because actual scandals about the invasion of Iraq and Hurricane Katrina emerged, but the public as a whole paid less attention to the severity of those problems because every “scandal” was reported with the same seriousness and severity.  This got even worse under Obama.  The IRS “scandal” went on for months and the Benghazi reporting went on for years.  The public becomes numb to endless outrage.

The second problem is that since the 90s, almost everyone on the ideological spectrum has lost faith in the Press.  In the scandal industrial complex the news has become, people with different ideological beliefs want to pick the scandals they hear about.  The Right hasn’t trusted mainstream outlets since the Drudge Report broke the story of Monica Lewinsky’s blue dress. During the Bush Administration, the Left began to seek out media that would report on issues like Bush’s attacks on gay rights and abortion.  Finally, the center lost faith in the Press when, during the run up to the Iraq war and invasion, it traded its integrity for government approved access, and failed to expose the Bush Administration’s use of faulty evidence to lead the American People into a costly war, the consequences of which are still haunting us.  The Press put itself in its present position. As Radiohead says, you do it to yourself.

The Ugly

If the Press is or becomes truly discredited, and Trump really wants to seize power, he will likely act to limit its ability to disseminate information.  For some would-be Dictators this takes the form of legally rescinding the freedom of the Press, as Hitler did in the Reichstag Fire Decree of February 1933.  Others restrict content by opening a state media outlet, as Vladimir Putin did with RT, or purchasing hostile media while requiring transmission of government statements, as Nicolás Maduro has done in Venezuela.  Often, emerging autocrats muzzle the Press by simply murdering journalists, as Putin has unquestionably done. Knowing that Trump admires and consistently defends Putin casts Putin’s tactics vis-à-vis the Press in an alarming light. It is not inconceivable that Trump sees Putin’s tactics as a model. However, the Ugly hasn’t happened yet, and until it does, we have to read, support, and share reliable, fact based articles from reputable sources like the New York Times, the Washington Post, the Wall Street Journal, and the Economist. In a very real way, the ability of the Press to hold Trump accountable, as it did Nixon, depends on each of us, and our willingness to believe that it can.

 

Terrorist Whack-a-Mole and the Illusion of Safety

We need to stop throwing that old Ben Franklin quote about liberty and security at each other, and not just because Ben Franklin wasn’t talking about privacy rights.  When the Right advocates a new domestic security policy, the Left trots it out.  When the Left proposes new gun restrictions, the Right trots it out.  The fact that both “teams” are using the same argument against one another indicates neither has ideological consistency about either liberty or security.  The arguments about border security on the Right and guns on the Left are about which illusory solution each team reaches for to feel like they can control the uncontrollable. They are also not about radical islamism or white nationalism or mental health.  They are about fear of the unknown and the false notion that the government can protect us from each other.

Our security apparatus only creates an illusion of security

The Right’s big bête noire is “radical islamic terrorism,” and many are willing to sacrifice significant liberties (like the right against wireless search and seizure) and accept illiberal policies at home to play terrorist whack-a-mole.  Putting a pin in the discussion of how many moles we’re whacking abroad, it’s important to note that the security measures taken within the US, while designed to make people feel safer, don’t really achieve much more than that.

The TSA is the best and biggest example of a completely pointless security agency.   It is ineffective and reactionary.  The TSA was created in response to 9/11, and has succeeded only, as far as I can tell, in annoying passengers by trying to make sure they aren’t replicating tactics used by previous would-be terrorists. (Really?  We’re still taking off our shoes?)  These measures do not provide an effective screening program. TSA has a 95% failure rate in detecting explosives and weapons in luggage.  It may make people feel like they are safer, but it does not actually prevent anyone from getting on an airplane and blowing it up.

Likewise customs and border patrol displays selectively rigorous (usually *highly* profiled) vetting designed to make the public feel safe.  In airports, where most people see customs agents, they are able to conduct pretty thorough screening.  There are also crossings on the Mexican border that have significant screening. However, CBP is also responsible for all of our ports, 12,383 miles of coastline, a 5,525 mile border with Canada, and an approximately 2,000 mile border with Mexico.  Trump’s solution to this is to build a wall with Mexico.  This makes absolutely no sense.  For one thing, given that terrorism is one of the justifications given by the Right for this policy, it is worth noting that more terrorists enter the US from Canada than from Mexico.  Moreover, where there is an existing border wall in San Diego, the border patrol has found 30 tunnels in the last 10 years.  Trump’s wall is not going to keep radicalized terrorists out. It is not functional, it is psychological.

Fertilizer not butter

When domestic terror attacks occur, whether they are committed by white nationalists as in Charleston or Denver, or radicalized Muslims in Orlando or San Bernadino, the Left starts talking about guns.  They gin up mental health legislation trying to prevent access to guns, they talk about how their gun policy would have prevented the mass shooting (questionable at best), and explain how the NRA is preventing the US from eradicating terror attacks. This is complete nonsense.

Now I’m not suggesting that background checks and smart guns and any number of precautions are bad or that they will not help keep domestic abusers from buying guns or toddlers from shooting their friends. I am saying that they are not going to stop isolated, angry, disaffected humans, usually young men, from seeking out extreme ideologies or using violence to attack personal or ideological “enemies.”  It’s hard to predict who will be radicalized in this way, so immigration bans aren’t going to fix it.  These people won’t necessarily go to a psychologist, so mental health restrictions won’t always catch them. The ideologies vary, from Elliot Roger, the misogynist who blamed women for his pain, to Dylann Roof, who blamed black Americans, to Omar Mateen, who trained his hate on LGBT Americans.  The profile remains the same.

People with this radicalized profile are the same across the West, and there is no reason to believe removing guns from the equation is going to stop them.  The 7/7 bombings in London did not use guns.  Anders Breivik’s 2011 attacks in Norway did use a gun, but he used a car bomb too.  Attackers in Nice and Berlin have begun driving trucks into crowds of people as a means of inflicting terror.  The Columbine shooters created bombs as well as using guns, as did James Holmes. Tim McVeigh, the deadliest domestic terrorist in US history, used fertilizer to blow up a federal building.  Fertilizer.  Are we going to ban that too?  Radicalized individuals will find a way to inflict violence if that’s what they want to do.  This solution is no more narrowly tailored to address the problem than border walls.

There is no such thing as safety

Americans have never been able to understand, probably because of our oceans, that the world is dangerous, the government cannot completely stop that, and terrorists are just one of life’s dangers. When we had one large terrorist attack, we cracked down on our own citizens, invaded two countries, pissed off the entire world, and stuck ourselves with a really big tab.  It doesn’t have to be that way.

I’ll never forget the first time I visited London in 1996 – there was a bomb threat in the Tube.  No one panicked.  Everyone just went about their day.  Likewise, on the day of the 7/7 bombings, when I called to check on friends, they were amused I felt the need to call, and said that they, like the rest of the city, were in a pub.  100+ years of terrorism by the IRA taught people they shouldn’t allow fear to affect their lives. As long as we allow our ideological teams to rile us up and entrench us in our camps fixating on islamist terrorism and border security on one hand, and white nationalism, mental health, and guns on the other, we will never find any kind of solution.

The government cannot prevent radicalization with security measures or gun restrictions.  In fact, both will probably create more anti-government radicals like Tim McVeigh. Americans have to let go of the idea of George W. Bush’s War on Terror.  The War on Terror is a war on disaffected, isolated, angry people, and we are never going to run out of them. They will never stop using violence to frighten people unless it stops working. The more we pursue them, the more they proliferate. When you whack one mole, another one is going to pop up. Our only solution is to stop being afraid.