Frank Bruni apparently likes a good football game as much as the next guy, but the New York Times columnist was discomfited by the Indianapolis Colts’ come-from-behind victory over the Kansas City Chiefs in an early round in the National Football League (NFL) playoffs. Bruni was bothered not so much by the outcome as by the injuries to key Chiefs players that contributed to their loss.
In all, the Chiefs lost three players to concussions during the game: running back Jamaal Charles, wide receiver Donny Avery, and star cornerback Brandon Flowers. Bruni related the scene in his column [Jan. 7] as Flowers lay motionless just off the sidelines after his head had whipped into another player’s legs.
Disturbingly for Bruni, the broadcaster treated the succession of injuries in football instead of human terms: “a momentum-buster,” he called it. “What clumsy but telling words,” Bruni wrote. “That's the National Football League for you. Broken bodies matter mostly in terms of a broken rhythm.”
Professional football has been the United States’ most popular spectator sport since the 1960s. Tens of thousands of fans flock to mammoth stadiums around the country every Sunday, while millions of others watch in their living rooms or sports bars. The game is a money-maker for the league —
nearly $10 billion in annual revenue — and for the television networks that carry the game.
The NFL has maintained its popularity despite increasing evidence over the past two decades of the serious and long-lasting injuries that the game inflicts on the young men who play it. “Football is hazardous to your health,” Dave Pear, a six-season defensive lineman (1976-1981), told me for my report for CQ Researcher in advance of Super Bowl XLIV (Jan. 29, 2010).
Pear is paying for six years of pro football by living with constant pain from injuries to his neck and back. Many other retired players are suffering with worse: dementia brought on by concussive impacts sustained to their heads week after week. For a few, the pain and loss of mental capacity have proved so unbearable as to lead to suicide — for example, former All-Pro linebacker Junior Seau, who shot himself on Jan. 20, 2012. An autopsy showed that Seau suffered from brain disease – chronic traumatic encephalopathy (CTE), in medical terms.
For years, the NFL game plan was to deny the connection, but the law finally threatened to catch up with the league. Two groups of retired players filed related class actions against the league in July 2011, seeking compensation for deaths and brain-related diseases they suffered from injuries sustained during their gridiron years. Two years later, attorneys for the plaintiffs reached a tentative settlement with the NFL, which was detailed in more than 350 pages of legal documents filed in federal court in Philadelphia last week [Jan. 6].
At first glance, the league appears finally to be paying for what the game does to players. The settlement calls for $765 million in compensation for retired players, with maximum payments of up to $4 million for players who died from brain disease injuries and seven-figure compensation for players with dementia or Parkinson’s or Alzheimer’s disease.
That seems like a lot of money, but on closer examination it is clear that the NFL will come out of this case with its finances intact and its reputation largely saved if the settlement is approved as expected. Compensation levels are reduced for older players: a maximum of $580,000, for example, for a player diagnosed with severe dementia in his early 60s. (Details can be seen in the documents that are linked in a column by ESPN legal analyst Lester Munson: see Exhibit A.) And the compensation is paid out over a 20-year period. The present-day value of the compensation package — using conservative discounting — is around $500 million, a pittance for a $10 billion industry.
Some of the retired players are balking at the amounts and could decide to opt out of the class action. If enough do so, the settlement might unravel. It seems more likely, however, that the settlement will stand. Judge Anita Brody, who has been eager for a settlement, is likely to approve the settlement following a fairness hearing. And retired players who qualify are likely to see the advantages of taking assured compensation now, with no need to prove causation, rather than taking their chances on protracted litigation in court.
For NFL executives and owners, the settlement offers the chance to put this issue behind them. The lawsuit charges that the NFL failed to protect players from the chronic risks of head injuries and concealed those risks, but the settlement will end the case with no admission of liability or misconduct from the league. “The NFL will not be opening its books,” NPR’s Mike Pesca remarked on the PBS NewsHour (Jan. 10).
The NFL has adopted a stricter protocol for head injuries, keeping players from returning to the field after concussions. But, as Bruni wrote, the league could do more to protect players: better equipment, better training, fewer games, and perhaps even weight limits for players. The occupational hazards appear, however, to be no deterrent to the steady flow of would-be recruits in the NFL draft each year and no great concern for the fans who watch and cheer with each body-crushing tackle every Sunday.
Sunday, January 12, 2014
Sunday, January 5, 2014
In Interest of Justice, Clemency for Edward Snowden
Developing story: The National Security Agency (NSA) is hard at work on a so-called quantum computer that could break nearly every kind of encryption used to protect digitized personal, business, and government records around the world.
That’s how the Washington Post reported the news in a front-page story last week [Jan. 3], based not on an NSA press release — as if there were such a thing — but on documents provided by the NSA’s wayward former contractor, Edward Snowden.
The $79.7 million research program could have “revolutionary implications” for the NSA’s intelligence gathering, the Post reported – not to mention the effects on privacy-protecting efforts of 21st century individuals, businesses, and governments. But the classified program was all hush-hush, except for speculation among physicists and computer scientists, until the Post’s Steven Rich and Barton Gellman mined some details from documents leaked by Snowden.
Snowden, now in a sort of exile in Russia, has been a divisive figure ever since he unmasked himself as the source for stories in the British newspaper The Guardian and the Post on the NSA’s vacuuming up of bulk telephone records. The government has charged him with espionage, and some national security hawks call him a traitor. But many critics of broad government surveillance view him as a whistleblower, hero, and patriot.
The debate over Snowden has intensified since an NSA official suggested and the New York Times editorially endorsed the idea of granting him some sort of amnesty or clemency. The idea seems destined to go nowhere, at least not anytime soon, but Snowden’s contribution to understanding and debating the government’s overly broad surveillance programs warrants something other than long prison time or lifetime banishment.
As the Times reported in a news story [Jan. 4], Richard Ledgett, head of an NSA task force assessing the damage from Snowden’s disclosures, floated the idea of a deal — amnesty for “assurances” against any more revelations — in an interview aired on the CBS program 60 Minutes [Dec. 15]. “My personal view is, yes, it’s worth having a conversation about,” said Ledgett, who is in line to become the secret agency’s second-in-command.
The Times forcefully advocated clemency or a plea bargain in a long editorial [Jan. 2] that editorial page editor Andrew Rosenthal said had been in the making for weeks. The Times editorial listed “substantially reduced punishment” as one possible outcome for Snowden. Still, Rosenthal conceded to the
Times’s public editor Margaret Sullivan that the newspaper’s stance might be “beyond what is realistic.”
Reaction over the next few days confirmed Rosenthal’s assessment. Even some critics of the intelligence establishment disagreed. Fred Kaplan, who writes on foreign policy for Slate, opened a long column [Jan. 3] by criticizing the government’s surveillance program but argued against amnesty for Snowden because of his disclosure of other, legitimate intelligence-gathering activities.
Richard Clarke, the former White House counterterrorism adviser best known for his criticism of the government’s pre-9/11 failures on al Qaeda, also came down against amnesty for Snowden. “In any outcome here, he’s going to serve time,” Clarke, currently one of five members of a White House-appointed task force reviewing the surveillance program, told the Times’s White House correspondent Peter Baker.
Baker said two other members of the group also voiced opposition to amnesty for Snowden, including Geoffrey Stone, a professor at the University of Chicago Law School and longtime critic of government secrecy. ‘“Even if Snowden’s benefit outweighed his costs, you don’t want to encourage people to make this decision for themselves,” Stone said. As for the White House and Justice Department, Baker said Ledgett’s suggestion had been met with “stony opposition.”
In principle, the critics of any amnesty have a sound point, but principle often bows to reality in criminal justice. The NSA’s interest in cutting a deal with Snowden suggests that the agency sees a possible net gain in a plea bargain. And whatever the government’s interest, a just outcome in Snowden’s case must also take into account the real public benefit of his actions.
The NSA’s collection of telephone records raises profound issues of how best to serve both national security and individual liberty, but those issues received far too little attention from policymakers in Congress or the executive branch before Snowden’s disclosures. Only now has it been learned that the super-secret Foreign Intelligence Surveillance Court upbraided the NSA for some operations of the program. And only now has there been full, public litigation over the legality of the program and a quasi-independent executive branch review of possible changes.
Justice would not have been well served 40 years ago if the Pentagon Papers leaker Daniel Ellsberg had gone to prison. He was spared prison thanks to the illegal break-in at his psychiatrist’s office committed under President Richard M. Nixon, who himself was spared prison for political rather than legal reasons. In the decade since 9/11, there has been little accountability for executive branch officials and personnel for possible crimes in the so-called war on terror.
Edward Snowden is a flawed figure, to be sure, guilty of deception and self-aggrandizement. But the public benefits of his actions outweigh the proven harm to the government’s intelligence-gathering interests. Snowden may or may not want to return to the United States, but a deal that limits his possible punishment would serve the ends of justice.
That’s how the Washington Post reported the news in a front-page story last week [Jan. 3], based not on an NSA press release — as if there were such a thing — but on documents provided by the NSA’s wayward former contractor, Edward Snowden.
The $79.7 million research program could have “revolutionary implications” for the NSA’s intelligence gathering, the Post reported – not to mention the effects on privacy-protecting efforts of 21st century individuals, businesses, and governments. But the classified program was all hush-hush, except for speculation among physicists and computer scientists, until the Post’s Steven Rich and Barton Gellman mined some details from documents leaked by Snowden.
Snowden, now in a sort of exile in Russia, has been a divisive figure ever since he unmasked himself as the source for stories in the British newspaper The Guardian and the Post on the NSA’s vacuuming up of bulk telephone records. The government has charged him with espionage, and some national security hawks call him a traitor. But many critics of broad government surveillance view him as a whistleblower, hero, and patriot.
The debate over Snowden has intensified since an NSA official suggested and the New York Times editorially endorsed the idea of granting him some sort of amnesty or clemency. The idea seems destined to go nowhere, at least not anytime soon, but Snowden’s contribution to understanding and debating the government’s overly broad surveillance programs warrants something other than long prison time or lifetime banishment.
As the Times reported in a news story [Jan. 4], Richard Ledgett, head of an NSA task force assessing the damage from Snowden’s disclosures, floated the idea of a deal — amnesty for “assurances” against any more revelations — in an interview aired on the CBS program 60 Minutes [Dec. 15]. “My personal view is, yes, it’s worth having a conversation about,” said Ledgett, who is in line to become the secret agency’s second-in-command.
The Times forcefully advocated clemency or a plea bargain in a long editorial [Jan. 2] that editorial page editor Andrew Rosenthal said had been in the making for weeks. The Times editorial listed “substantially reduced punishment” as one possible outcome for Snowden. Still, Rosenthal conceded to the
Times’s public editor Margaret Sullivan that the newspaper’s stance might be “beyond what is realistic.”
Reaction over the next few days confirmed Rosenthal’s assessment. Even some critics of the intelligence establishment disagreed. Fred Kaplan, who writes on foreign policy for Slate, opened a long column [Jan. 3] by criticizing the government’s surveillance program but argued against amnesty for Snowden because of his disclosure of other, legitimate intelligence-gathering activities.
Richard Clarke, the former White House counterterrorism adviser best known for his criticism of the government’s pre-9/11 failures on al Qaeda, also came down against amnesty for Snowden. “In any outcome here, he’s going to serve time,” Clarke, currently one of five members of a White House-appointed task force reviewing the surveillance program, told the Times’s White House correspondent Peter Baker.
Baker said two other members of the group also voiced opposition to amnesty for Snowden, including Geoffrey Stone, a professor at the University of Chicago Law School and longtime critic of government secrecy. ‘“Even if Snowden’s benefit outweighed his costs, you don’t want to encourage people to make this decision for themselves,” Stone said. As for the White House and Justice Department, Baker said Ledgett’s suggestion had been met with “stony opposition.”
In principle, the critics of any amnesty have a sound point, but principle often bows to reality in criminal justice. The NSA’s interest in cutting a deal with Snowden suggests that the agency sees a possible net gain in a plea bargain. And whatever the government’s interest, a just outcome in Snowden’s case must also take into account the real public benefit of his actions.
The NSA’s collection of telephone records raises profound issues of how best to serve both national security and individual liberty, but those issues received far too little attention from policymakers in Congress or the executive branch before Snowden’s disclosures. Only now has it been learned that the super-secret Foreign Intelligence Surveillance Court upbraided the NSA for some operations of the program. And only now has there been full, public litigation over the legality of the program and a quasi-independent executive branch review of possible changes.
Justice would not have been well served 40 years ago if the Pentagon Papers leaker Daniel Ellsberg had gone to prison. He was spared prison thanks to the illegal break-in at his psychiatrist’s office committed under President Richard M. Nixon, who himself was spared prison for political rather than legal reasons. In the decade since 9/11, there has been little accountability for executive branch officials and personnel for possible crimes in the so-called war on terror.
Edward Snowden is a flawed figure, to be sure, guilty of deception and self-aggrandizement. But the public benefits of his actions outweigh the proven harm to the government’s intelligence-gathering interests. Snowden may or may not want to return to the United States, but a deal that limits his possible punishment would serve the ends of justice.
Monday, December 30, 2013
Refugee Crises Challenge World for New Solutions
More than 2.5 million Syrians have fled their home country in the bloody civil war that is now nearing its third-year anniversary. These refugees, including more than 1 million children, constitute the world’s worst humanitarian crisis in a generation, but it is only one of several protracted challenges for the United Nations and private international relief organizations.
Hundreds of thousands of Africans have also fled from conflicts in South Sudan, the Central African Republic, the Democratic Republic of Congo, and Nigeria. All told, there are now more than 10 million refugees worldwide, most of them housed and fed in camps meant to be temporary but over time more akin to permanent settlements.
These refugees benefit from a legal regime established after World War II. In history’s world-ever humanitarian crisis, Europe had more than 6 million displaced persons on a continent with its infrastructure ruined and its political institutions broken down. Under U.N. auspices, the nations of the world agreed in 1951 on a treaty, the Convention on the Status of Refugees, that provided for recognition of refugees and protected them from forced repatriation to their home countries.
The treaty was initially limited to Europe, but in 1967 a second treaty — the Protocol on the Status of Refugees — allowed for expanded coverage to refugees worldwide. More than 140 countries, including the United States, are now parties to the 1967 treaty.
As important as the treaties’ life-saving protections may be, however, they are less than a complete solution for refugees, according to a leading U.S. expert and ranking United Nations official. As Alex Aleinikoff explained in a lecture at Georgetown Law School in late November, most of the refugees cannot return to their home countries, will not be integrated by their host countries, and will not be accepted by other countries. “Nonsolutions have become the norm,” said Aleinikoff, the school’s former dean and now the U.N. deputy high commissioner for refugees.
The Syrian refugee crisis as well as the others have gained the world’s sympathetic attention. Print, photo, and TV journalists have visited the camps and brought back moving stories of people uprooted by conflicts, like this multipart package on Syrian refugees published in The Washington Post earlier this month [Dec. 15].
Readers and viewers moved by the emotional impact of these accounts, however, can easily overlook the longer term challenge that the refugees present. As senior correspondent Kevin Sullivan writes, the refugee camps “increasingly look like permanent cities” with “thousands of children” being born in makeshift maternity wards. Jordan’s Zatari refugee camp, with 120,000 people, is now that country’s fourth largest city, Sullivan notes. In his lecture, Aleinikoff noted that the Dadaab refugee camp in Kenya, with more than 450,000 residents, now ranks as that country’s third largest city.
Aleinikoff rightly emphasizes the successes of the current legal protections for refugees. Immediately after World War II, millions of Russian refugees were repatriated to the Soviet Union, many of them sent to long-term imprisonment or death in the Siberian gulags.
The 1951 treaty formalized the international law principle against forced repatriation known by the French term nonrefoulement. “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion,” the treaty states.
Along with the principle of nonrefoulement, the treaty provides for recognition of refugee status, minimum conditions for treatment of refugees, burden sharing among nations, and monitoring of refugees’ treatment. But, as Aleinikoff noted, the treaty guarantees those rights only to those who meet its definition of refugee, which does not include those who flee from poverty or generalized violence.
Even those who qualify as refugees, however, have only limited rights. Refugees have no right to work and no right to move, Aleinikoff notes. Those limitations, he observes, may be the price that refugee advocates have to pay for host countries’ open borders. And despite the best efforts hundreds of thousands of refugee children are not being schooled.
Even though more refugees are receiving assistance than ever before, “no one believes that our current system of care and maintenance is ideal,” Aleinikoff says. Kept in “refugee dependency” for what is now an average tenure of 17 years, hundreds of thousands of refugees are simply “forgotten persons,” he says.
Aleinikoff’s discussion indicates that solutions require not only more money but also political will and creative thinking. Countries outside the affected regions must be willing to accept more refugees to ease the burdens on neighboring host countries. As Sullivan noted, Lebanon has absorbed 1.6 million Syrian refugees, more than one-third of its prewar population of 4.4 million. In this regard, the United States is lagging badly. Through September, the United Stats had granted permanent status to only 90 Syrian refugees, according to a later story in the Post [Dec. 28]. The administration now says it wants to do more.
Aleinikoff also urges that refugees be given training in the camps along with opportunities to develop productive communities — for example, through farming. Donor countries support such initiatives, Aleinikoff says, but host countries, fearful of the impact on jobs for their own citizens, are “a harder sell.” Whatever the politics may be, the refugees’ plight cries out for attention, even as the conflicts that they fled continue with no resolutions in sight.
Hundreds of thousands of Africans have also fled from conflicts in South Sudan, the Central African Republic, the Democratic Republic of Congo, and Nigeria. All told, there are now more than 10 million refugees worldwide, most of them housed and fed in camps meant to be temporary but over time more akin to permanent settlements.
These refugees benefit from a legal regime established after World War II. In history’s world-ever humanitarian crisis, Europe had more than 6 million displaced persons on a continent with its infrastructure ruined and its political institutions broken down. Under U.N. auspices, the nations of the world agreed in 1951 on a treaty, the Convention on the Status of Refugees, that provided for recognition of refugees and protected them from forced repatriation to their home countries.
The treaty was initially limited to Europe, but in 1967 a second treaty — the Protocol on the Status of Refugees — allowed for expanded coverage to refugees worldwide. More than 140 countries, including the United States, are now parties to the 1967 treaty.
As important as the treaties’ life-saving protections may be, however, they are less than a complete solution for refugees, according to a leading U.S. expert and ranking United Nations official. As Alex Aleinikoff explained in a lecture at Georgetown Law School in late November, most of the refugees cannot return to their home countries, will not be integrated by their host countries, and will not be accepted by other countries. “Nonsolutions have become the norm,” said Aleinikoff, the school’s former dean and now the U.N. deputy high commissioner for refugees.
The Syrian refugee crisis as well as the others have gained the world’s sympathetic attention. Print, photo, and TV journalists have visited the camps and brought back moving stories of people uprooted by conflicts, like this multipart package on Syrian refugees published in The Washington Post earlier this month [Dec. 15].
Readers and viewers moved by the emotional impact of these accounts, however, can easily overlook the longer term challenge that the refugees present. As senior correspondent Kevin Sullivan writes, the refugee camps “increasingly look like permanent cities” with “thousands of children” being born in makeshift maternity wards. Jordan’s Zatari refugee camp, with 120,000 people, is now that country’s fourth largest city, Sullivan notes. In his lecture, Aleinikoff noted that the Dadaab refugee camp in Kenya, with more than 450,000 residents, now ranks as that country’s third largest city.
Aleinikoff rightly emphasizes the successes of the current legal protections for refugees. Immediately after World War II, millions of Russian refugees were repatriated to the Soviet Union, many of them sent to long-term imprisonment or death in the Siberian gulags.
The 1951 treaty formalized the international law principle against forced repatriation known by the French term nonrefoulement. “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social or political opinion,” the treaty states.
Along with the principle of nonrefoulement, the treaty provides for recognition of refugee status, minimum conditions for treatment of refugees, burden sharing among nations, and monitoring of refugees’ treatment. But, as Aleinikoff noted, the treaty guarantees those rights only to those who meet its definition of refugee, which does not include those who flee from poverty or generalized violence.
Even those who qualify as refugees, however, have only limited rights. Refugees have no right to work and no right to move, Aleinikoff notes. Those limitations, he observes, may be the price that refugee advocates have to pay for host countries’ open borders. And despite the best efforts hundreds of thousands of refugee children are not being schooled.
Even though more refugees are receiving assistance than ever before, “no one believes that our current system of care and maintenance is ideal,” Aleinikoff says. Kept in “refugee dependency” for what is now an average tenure of 17 years, hundreds of thousands of refugees are simply “forgotten persons,” he says.
Aleinikoff’s discussion indicates that solutions require not only more money but also political will and creative thinking. Countries outside the affected regions must be willing to accept more refugees to ease the burdens on neighboring host countries. As Sullivan noted, Lebanon has absorbed 1.6 million Syrian refugees, more than one-third of its prewar population of 4.4 million. In this regard, the United States is lagging badly. Through September, the United Stats had granted permanent status to only 90 Syrian refugees, according to a later story in the Post [Dec. 28]. The administration now says it wants to do more.
Aleinikoff also urges that refugees be given training in the camps along with opportunities to develop productive communities — for example, through farming. Donor countries support such initiatives, Aleinikoff says, but host countries, fearful of the impact on jobs for their own citizens, are “a harder sell.” Whatever the politics may be, the refugees’ plight cries out for attention, even as the conflicts that they fled continue with no resolutions in sight.
Sunday, December 15, 2013
Courts Have Next Moves on Marriage Equality
The past year has been very, very good for marriage equality for gay and lesbian couples in the United States. In a 13-month period (November through November), the number of states recognizing marriage rights for same-sex couples more than doubled from six (plus the District of Columbia) to 16; the number of people living in marriage equality states more than tripled from about 35 million to 118 million.
But hold the applause. Despite that progress for gay rights supporters, somewhat more than 60 percent of Americans still live in states where same-sex couples cannot marry. And the barriers to marriage equality in almost all of those 34 states are formidable. All but a few have Republican-controlled legislatures and Republican governors, and the Republican Party has yet to get the memo that most Americans now support marriage rights for gay and lesbian couples.
In addition, most of those states have constitutional amendments defining marriage as “one man and one woman,” provisions that cannot be repealed by simple legislation. Voters approved most of those anti-gay measures in the decade from the mid-1990s through 2004 while gay marriage supporters were focusing mostly on court cases.
Gay marriage was terra incognita for the voters at that time. As of November 2004, Adam and Steve could get married in only one state: Massachusetts. It was easy for anti-gay groups to depict this uncharted terrain as hostile to traditional marriage, unhealthy for children, and unsettling for public morality. Through 2004, all the amendments but one (Oregon’s) won approval with more than 60 percent of the votes cast.
Since Massachusetts, gay marriage supporters have turned to and succeeded in the political sphere. Along with the District of Columbia, 12 states have decided to allow same-sex marriages by legislation, not by judicial fiat. That number includes Maine, Maryland, and Washington, where voters last year rejected referenda aimed at overturning the legislative enactments. And it includes five more states that enacted same-sex marriage legislation since November 2012: Minnesota, Rhode Island, Delaware, Hawaii, and Illinois.
The political route, however, appears now to be, if not at a dead end, at the start of a steep incline. So attention turns to the courts, which yielded two of the state victories in the past year. Most significantly, the Supreme Court in late June greenlighted gay marriage in California by leaving on the books a lower federal court decision that struck down the state’s anti-gay marriage initiative Proposition 8 (Hollingsworth v. Perry).
On the same day, the court struck down the federal Defense of Marriage Act (DOMA), which barred federal marriage-based benefits to same-sex couples even if legally married in their home states. The ruling in United States v. Windsor provided the basis for a New Jersey trial-level court three months later to strike down the state’s ban on same-sex marriage. The court reasoned that New Jersey’s law, by denying federal benefits to same-sex couples, violated the state constitution’s own equal protection requirements. Advised that the New Jersey Supreme Court would likely affirm the decision, Gov. Chris Christie decided the state would not appeal.
Gay marriage supporters sense another possible victory in New Mexico, where the state supreme court heard arguments on the issue on Oct. 23. News accounts viewed the questions from the justices as favoring the gay marriage advocates. Meanwhile, marriage equality supporters in Oregon say they have enough signatures to qualify a proposal to repeal the state’s gay marriage ban for the November 2014 ballot.
Meanwhile, federal court suits are pending in 17 states, including Oregon, aimed at judicially overturning gay marriage bans, according to a compilation by the national advocacy group Freedom to Marry. One other federal court suit, in Tennessee, is limited to seeking to force the state to recognize same-sex marriages from other states. These suits are pending in federal courts in some of the reddest of the red states, such as Arkansas, Mississippi, Oklahoma, and South Carolina. A comparable suit is pending in state court in Colorado. Some suits are far along—notably, those in Nevada and Michigan; others have just been filed.
In all of these cases, the Supreme Court’s decision in Windsor is potentially powerful support for gay marriage advocates. Admittedly, Justice Anthony M. Kennedy took care in his opinion for the 5-4 majority to acknowledge the states’ “unquestioned authority” over marriage law. In the critical passages, however, Kennedy said that the federal government’s refusal to recognize same-sex marriages places those couples “in an unstable position,” burdens their lives “in visible and public ways,” and “humiliates tens of thousands of children now being raised by same-sex couples.”
Suppose, for a moment, that you are a federal judge, with those passages before you, trying to write a decision upholding a state’s ban on same-sex marriages. What arguments are still open to you? Harm to traditional marriage? Harm to children? Harm to society? In the first cases after Massachusetts, state high courts in New York and Washington accepted those arguments, in closely divided decisions. Now, almost a decade later, they fail, by experience as well as logic.
Opponents of gay marriage are losing in the court of public opinion and being pushed back in political forums. With so many suits pending, federal courts may not all agree. But the arc of history is bending toward marriage equality. And the Supreme Court’s ultimate role in this litigation may only be to ratify a consensus that Americans have already accepted.
But hold the applause. Despite that progress for gay rights supporters, somewhat more than 60 percent of Americans still live in states where same-sex couples cannot marry. And the barriers to marriage equality in almost all of those 34 states are formidable. All but a few have Republican-controlled legislatures and Republican governors, and the Republican Party has yet to get the memo that most Americans now support marriage rights for gay and lesbian couples.
In addition, most of those states have constitutional amendments defining marriage as “one man and one woman,” provisions that cannot be repealed by simple legislation. Voters approved most of those anti-gay measures in the decade from the mid-1990s through 2004 while gay marriage supporters were focusing mostly on court cases.
Gay marriage was terra incognita for the voters at that time. As of November 2004, Adam and Steve could get married in only one state: Massachusetts. It was easy for anti-gay groups to depict this uncharted terrain as hostile to traditional marriage, unhealthy for children, and unsettling for public morality. Through 2004, all the amendments but one (Oregon’s) won approval with more than 60 percent of the votes cast.
Since Massachusetts, gay marriage supporters have turned to and succeeded in the political sphere. Along with the District of Columbia, 12 states have decided to allow same-sex marriages by legislation, not by judicial fiat. That number includes Maine, Maryland, and Washington, where voters last year rejected referenda aimed at overturning the legislative enactments. And it includes five more states that enacted same-sex marriage legislation since November 2012: Minnesota, Rhode Island, Delaware, Hawaii, and Illinois.
The political route, however, appears now to be, if not at a dead end, at the start of a steep incline. So attention turns to the courts, which yielded two of the state victories in the past year. Most significantly, the Supreme Court in late June greenlighted gay marriage in California by leaving on the books a lower federal court decision that struck down the state’s anti-gay marriage initiative Proposition 8 (Hollingsworth v. Perry).
On the same day, the court struck down the federal Defense of Marriage Act (DOMA), which barred federal marriage-based benefits to same-sex couples even if legally married in their home states. The ruling in United States v. Windsor provided the basis for a New Jersey trial-level court three months later to strike down the state’s ban on same-sex marriage. The court reasoned that New Jersey’s law, by denying federal benefits to same-sex couples, violated the state constitution’s own equal protection requirements. Advised that the New Jersey Supreme Court would likely affirm the decision, Gov. Chris Christie decided the state would not appeal.
Gay marriage supporters sense another possible victory in New Mexico, where the state supreme court heard arguments on the issue on Oct. 23. News accounts viewed the questions from the justices as favoring the gay marriage advocates. Meanwhile, marriage equality supporters in Oregon say they have enough signatures to qualify a proposal to repeal the state’s gay marriage ban for the November 2014 ballot.
Meanwhile, federal court suits are pending in 17 states, including Oregon, aimed at judicially overturning gay marriage bans, according to a compilation by the national advocacy group Freedom to Marry. One other federal court suit, in Tennessee, is limited to seeking to force the state to recognize same-sex marriages from other states. These suits are pending in federal courts in some of the reddest of the red states, such as Arkansas, Mississippi, Oklahoma, and South Carolina. A comparable suit is pending in state court in Colorado. Some suits are far along—notably, those in Nevada and Michigan; others have just been filed.
In all of these cases, the Supreme Court’s decision in Windsor is potentially powerful support for gay marriage advocates. Admittedly, Justice Anthony M. Kennedy took care in his opinion for the 5-4 majority to acknowledge the states’ “unquestioned authority” over marriage law. In the critical passages, however, Kennedy said that the federal government’s refusal to recognize same-sex marriages places those couples “in an unstable position,” burdens their lives “in visible and public ways,” and “humiliates tens of thousands of children now being raised by same-sex couples.”
Suppose, for a moment, that you are a federal judge, with those passages before you, trying to write a decision upholding a state’s ban on same-sex marriages. What arguments are still open to you? Harm to traditional marriage? Harm to children? Harm to society? In the first cases after Massachusetts, state high courts in New York and Washington accepted those arguments, in closely divided decisions. Now, almost a decade later, they fail, by experience as well as logic.
Opponents of gay marriage are losing in the court of public opinion and being pushed back in political forums. With so many suits pending, federal courts may not all agree. But the arc of history is bending toward marriage equality. And the Supreme Court’s ultimate role in this litigation may only be to ratify a consensus that Americans have already accepted.
Sunday, December 8, 2013
Mandela Leaves Liberating Rule of Law as Legacy
Nelson Mandela, who died last week [Dec. 5] at age 95, transformed not only the political landscape of his beloved country, but also its legal system. Under apartheid, law was an instrument of racist, rights-denying repression. Today, thanks in part to the law-trained Mandela, South Africa’s constitution and its court system showcase the powerful role that law can play in protecting liberty and justice for all.
The system of racial separation and oppression known to the world by the Afrikaans term apartheid was erected only in mid-20th century. Racial segregation and discrimination date from Dutch colonial times, yes, and were tightened piece by piece by the Union of South Africa in the first half of the 20th century. But the white supremacist National Party used law to erect a more thoroughgoing system after it came to power in 1948.
Over the next five years, South Africa’s Parliament enacted piece by piece the legal pillars of “grand apartheid.” The Population Registration Act of 1950 formalized racial classification and required race-designating identity cards for all adults. The Group Areas Act of 1950 allotted living areas by race. The Bantu Authorities Act of 1951 set the stage for the creation of the “bantustans” as phony homelands for black South Africans. Two years later, the Bantu Education Act established an unequal education system that aimed to consign blacks to lifetimes as laborers
Along the way, Parliament forbade interracial marriages (1949) and interracial sexual relations (1950). And the Suppression of Communism Act of 1950 banned any political party that subscribed to communism, which was defined so broadly as to gag opposition to apartheid as disruptive to racial harmony.
Apartheid might have been turned back in infancy but for the National Party’s success in disenfranchising multiracial “colored” voters, a foul deed accomplished despite the resistance of the country’s highest court. (Blacks and Asians had no voting rights.) The Separate Representation of Voters Act of 1951 removed coloreds from the common voters roll in Cape Province, but four voters backed by the United Party challenged it in court.
The Appeal Court ruled the law invalid because Parliament had enacted it without the two-thirds majority required to change so-called “entrenched” clauses in the constitution. Parliament responded by enacting a law allowing it to overrule decisions of the Appeal Court. The Appeal Court ruled that measure invalid as well, but the National Party countered by increasing the court from five to 11 members and then packing it with pro-Nationalist judges. A temporarily enlarged Parliament re-enacted the law in 1956. Originally, coloreds were at least allotted four seats in Parliament, but those were abolished in 1969.
The courts were obliging instruments of repression for the next four decades — as exemplified by the famous Rivonia trial, where Mandela received his life prison sentence in 1965. Mandela’s release in 1990 set the stage for his election four years later as the first president of the multiracial, democratic Republic of South Africa.
With the help of a panel of professional judges, Mandela chose the 11 members of the newly established Constitutional Court of South Africa. The court was predominantly white but with three blacks and one Asian, and the white judges included Arthur Chaskalson, Mandela’s former lawyer, and other human rights veterans. As presiding judge, Chaskalson proclaimed the court’s obedience not to Parliament but to the constitution. “For the first time, the constitution trumps Parliament,” Chaskalson declared, according to the Washington Post’s account.
Not quite four months later, the Constitutional Court abolished the death penalty. The court declared in the ruling that capital punishment was inconsistent with the rights to life and dignity enshrined in the nation’s new constitution, given the arbitrariness of its imposition and the risk of error and the lack of any proven deterrence.
Since that time, the Constitutional Court has continued to issue landmark, rights-expanding decisions. The court followed its capital punishment decision with a ruling in 2001 that barred extradition of suspects from South Africa to a country where they might be subject to the death penalty.
The court in 2000 ruled that the government must provide housing relief to people living in intolerable or crisis situations. Three years later, it ruled that rights to land under customary law must be recognized and that communities dispossessed of land owned under customary law are entitled to restitution.
Along with other protections in its Bill of Rights, South Africa’s new constitution represented an important milestone for LGBT rights as the first national charter to prohibit discrimination on the basis of sexual orientation. The Constitutional Court gave that provision substance with its
ruling in 2005 by recognizing marriage rights for same-sex couples; the court gave Parliament 12 months to enact legislation, stipulating that any law be “truly and manifestly respectful of the dignity of same-sex couples.” Parliament passed conforming legislation in November 2006.
South Africa faces immense problems as it enters its third decade as a multiracial democracy: poverty, crime, and growing impatience among the black majority about persistent economic inequality. Yet Mandela’s insistence on the rule of law appears to have survived more than a decade after he relinquished office, according to John Campbell, a senior fellow for Africa policy studies at the Council on Foreign Relations. Human rights are protected, he writes in a blog post, freedom of speech absolute — at least for now. “These are major democratic achievements,” Campbell concludes, “and they owe much to Nelson Mandela's vision for his beloved country.”
The system of racial separation and oppression known to the world by the Afrikaans term apartheid was erected only in mid-20th century. Racial segregation and discrimination date from Dutch colonial times, yes, and were tightened piece by piece by the Union of South Africa in the first half of the 20th century. But the white supremacist National Party used law to erect a more thoroughgoing system after it came to power in 1948.
Over the next five years, South Africa’s Parliament enacted piece by piece the legal pillars of “grand apartheid.” The Population Registration Act of 1950 formalized racial classification and required race-designating identity cards for all adults. The Group Areas Act of 1950 allotted living areas by race. The Bantu Authorities Act of 1951 set the stage for the creation of the “bantustans” as phony homelands for black South Africans. Two years later, the Bantu Education Act established an unequal education system that aimed to consign blacks to lifetimes as laborers
Along the way, Parliament forbade interracial marriages (1949) and interracial sexual relations (1950). And the Suppression of Communism Act of 1950 banned any political party that subscribed to communism, which was defined so broadly as to gag opposition to apartheid as disruptive to racial harmony.
Apartheid might have been turned back in infancy but for the National Party’s success in disenfranchising multiracial “colored” voters, a foul deed accomplished despite the resistance of the country’s highest court. (Blacks and Asians had no voting rights.) The Separate Representation of Voters Act of 1951 removed coloreds from the common voters roll in Cape Province, but four voters backed by the United Party challenged it in court.
The Appeal Court ruled the law invalid because Parliament had enacted it without the two-thirds majority required to change so-called “entrenched” clauses in the constitution. Parliament responded by enacting a law allowing it to overrule decisions of the Appeal Court. The Appeal Court ruled that measure invalid as well, but the National Party countered by increasing the court from five to 11 members and then packing it with pro-Nationalist judges. A temporarily enlarged Parliament re-enacted the law in 1956. Originally, coloreds were at least allotted four seats in Parliament, but those were abolished in 1969.
The courts were obliging instruments of repression for the next four decades — as exemplified by the famous Rivonia trial, where Mandela received his life prison sentence in 1965. Mandela’s release in 1990 set the stage for his election four years later as the first president of the multiracial, democratic Republic of South Africa.
With the help of a panel of professional judges, Mandela chose the 11 members of the newly established Constitutional Court of South Africa. The court was predominantly white but with three blacks and one Asian, and the white judges included Arthur Chaskalson, Mandela’s former lawyer, and other human rights veterans. As presiding judge, Chaskalson proclaimed the court’s obedience not to Parliament but to the constitution. “For the first time, the constitution trumps Parliament,” Chaskalson declared, according to the Washington Post’s account.
Not quite four months later, the Constitutional Court abolished the death penalty. The court declared in the ruling that capital punishment was inconsistent with the rights to life and dignity enshrined in the nation’s new constitution, given the arbitrariness of its imposition and the risk of error and the lack of any proven deterrence.
Since that time, the Constitutional Court has continued to issue landmark, rights-expanding decisions. The court followed its capital punishment decision with a ruling in 2001 that barred extradition of suspects from South Africa to a country where they might be subject to the death penalty.
The court in 2000 ruled that the government must provide housing relief to people living in intolerable or crisis situations. Three years later, it ruled that rights to land under customary law must be recognized and that communities dispossessed of land owned under customary law are entitled to restitution.
Along with other protections in its Bill of Rights, South Africa’s new constitution represented an important milestone for LGBT rights as the first national charter to prohibit discrimination on the basis of sexual orientation. The Constitutional Court gave that provision substance with its
ruling in 2005 by recognizing marriage rights for same-sex couples; the court gave Parliament 12 months to enact legislation, stipulating that any law be “truly and manifestly respectful of the dignity of same-sex couples.” Parliament passed conforming legislation in November 2006.
South Africa faces immense problems as it enters its third decade as a multiracial democracy: poverty, crime, and growing impatience among the black majority about persistent economic inequality. Yet Mandela’s insistence on the rule of law appears to have survived more than a decade after he relinquished office, according to John Campbell, a senior fellow for Africa policy studies at the Council on Foreign Relations. Human rights are protected, he writes in a blog post, freedom of speech absolute — at least for now. “These are major democratic achievements,” Campbell concludes, “and they owe much to Nelson Mandela's vision for his beloved country.”
Sunday, December 1, 2013
Alabama’s Lightning-Strike Death Penalty System
When Justice Potter Stewart provided a critical vote in the Supreme Court’s decision to strike down capital punishment in 1972, he wrote that the death penalty, as then administered, was “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Four years later, Stewart provided a critical vote in reinstating capital punishment as long as courts held separate penalty hearings and defendants could present any possible evidence of “mitigating factors” for juries to consider.
Despite the implementation of those Supreme Court-ordered reforms, critics say the death penalty is still, 30 years later, as arbitrary as a lightning strike. But in one state, Alabama, one source of the arbitrariness is plainly visible: politically elected judges who condemn defendants to death after juries have recommended life prison sentences instead.
Only three states permit judges to override jury sentencing decisions not to impose the death penalty in capital cases at all — Delaware and Florida are the others — but only in Alabama are judges routinely exercising that power now. Of the 199 inmates now on Alabama’s death row, 42 are there because judges imposed death sentences in the face of jurors’ decisions to spare the defendants’ lives. No judge in Delaware or Florida has done so since 1999; a fourth state that once permitted death sentences by judicial overrides, Indiana, changed its law and took that power away from judges.
The Supreme Court upheld Alabama’s law in a 1995 decision, Harris v. Alabama. Justice Sonia Sotomayor drew attention to the practice last month [Nov. 18] in an opinion calling on the court to reconsider that decision. Along with Justice Stephen G. Breyer, Sotomayor dissented when the court declined to take up a new case, Woodward v. Alabama, challenging the practice.
As Sotomayor explained, Alabama is now “a clear outlier” among the 32 states that allow the death penalty. Juries have a role in 31 of the state death-penalty schemes (all but Montana), and they have a final say in all but three.
Florida had been the leader in judicial override death sentences in the 1980s with 89 in the decade, but the number dwindled to 26 in the 1990s until the practice disappeared after 1999. Indiana never had more than one such case per year; Delaware has had only such case ever, and that judicially imposed death sentence was eventually reduced to life imprisonment. But the practice continues in Alabama: 30 judicial override death sentences in the 1980s, 44 in the ’90s, and 26 since 2000, an average of two a year.
Sotomayor believes the reason for Alabama judges’ death-dealing inclinations is simple: politics. Judges are elected in partisan races in Alabama; Florida holds nonpartisan judicial elections, while judges are appointed by the governor in Delaware. Alabama judges, Sotomayor writes, “appear to have succumbed to electoral pressures.” She noted that one Alabama judge, who has overridden jury verdicts to impose the death penalty six times, ran a campaign advertisement naming some of the defendants he had had sentenced to death; in at least one of the cases, the judge overrode the jury’s contrary judgment.
Sotomayor relied heavily in her opinion on a report by the Equal Justice Initiative, the Montgomery, Ala.-based public interest law firm. Its 32-page report, “The Death Penalty in Alabama: Judge Override,” made the point more forcefully, in part by citing statistics to indicate that death sentences by judicial overrides in Alabama peak in election years. “Because judicial candidates frequently campaign on their support and enthusiasm for capital punishment,” the report states, “political pressure injects unfairness and arbitrariness into override decisions.”
The report indicates that political pressure does not run the other way. In only nine cases have Alabama judges overridden jury recommendations to impose the death penalty in favor of a life sentence instead. And Alabama judges do not impose death sentences only after closely divided jury votes; in more than a dozen cases, judges sentenced defendants to death after jurors voted unanimously for life sentences.
In her opinion, Sotomayor also argued that the judicial override practice in Alabama runs afoul of the Supreme Court’s line of precedents — the so-called Apprendi cases — requiring jury instead of judicial fact-finding to raise a defendant’s sentence above the statutory minimum. (Breyer, a dissenter from those decisions, did not join that part of Sotomayor’s opinion.) As Sotomayor detailed, the judge in the case under review sentenced Mario Woodward to death for the killing of a Montgomery police officer after rejecting the jury’s 8-4 finding of mitigating factors based on Woodward’s abused childhood and his good relationship with his five children. Under Apprendi, Sotomayor wrote, “a sentencing scheme that permits such a result is constitutionally suspect.”
Justices use dissents from cert denials in part to highlight issues for possible later consideration. It takes only four votes to grant certiorari, so one question about Woodward’s case is why the other liberal justices — Ruth Bader Ginsburg and Elena Kagan — failed to join Sotomayor’s opinion. Perhaps they thought the case a poor vehicle to raise the issue: the mitigating factors in Woodward’s favor do appear somewhat flimsy. Or perhaps they feared that the liberal bloc could not persuade Justice Anthony M. Kennedy to provide a fifth vote against Alabama’s judicial override practice, at least not now. Still, Sotomayor laid out a strong case that Alabama’s lightning-strike death penalty system deserves “a fresh look.”
Despite the implementation of those Supreme Court-ordered reforms, critics say the death penalty is still, 30 years later, as arbitrary as a lightning strike. But in one state, Alabama, one source of the arbitrariness is plainly visible: politically elected judges who condemn defendants to death after juries have recommended life prison sentences instead.
Only three states permit judges to override jury sentencing decisions not to impose the death penalty in capital cases at all — Delaware and Florida are the others — but only in Alabama are judges routinely exercising that power now. Of the 199 inmates now on Alabama’s death row, 42 are there because judges imposed death sentences in the face of jurors’ decisions to spare the defendants’ lives. No judge in Delaware or Florida has done so since 1999; a fourth state that once permitted death sentences by judicial overrides, Indiana, changed its law and took that power away from judges.
The Supreme Court upheld Alabama’s law in a 1995 decision, Harris v. Alabama. Justice Sonia Sotomayor drew attention to the practice last month [Nov. 18] in an opinion calling on the court to reconsider that decision. Along with Justice Stephen G. Breyer, Sotomayor dissented when the court declined to take up a new case, Woodward v. Alabama, challenging the practice.
As Sotomayor explained, Alabama is now “a clear outlier” among the 32 states that allow the death penalty. Juries have a role in 31 of the state death-penalty schemes (all but Montana), and they have a final say in all but three.
Florida had been the leader in judicial override death sentences in the 1980s with 89 in the decade, but the number dwindled to 26 in the 1990s until the practice disappeared after 1999. Indiana never had more than one such case per year; Delaware has had only such case ever, and that judicially imposed death sentence was eventually reduced to life imprisonment. But the practice continues in Alabama: 30 judicial override death sentences in the 1980s, 44 in the ’90s, and 26 since 2000, an average of two a year.
Sotomayor believes the reason for Alabama judges’ death-dealing inclinations is simple: politics. Judges are elected in partisan races in Alabama; Florida holds nonpartisan judicial elections, while judges are appointed by the governor in Delaware. Alabama judges, Sotomayor writes, “appear to have succumbed to electoral pressures.” She noted that one Alabama judge, who has overridden jury verdicts to impose the death penalty six times, ran a campaign advertisement naming some of the defendants he had had sentenced to death; in at least one of the cases, the judge overrode the jury’s contrary judgment.
Sotomayor relied heavily in her opinion on a report by the Equal Justice Initiative, the Montgomery, Ala.-based public interest law firm. Its 32-page report, “The Death Penalty in Alabama: Judge Override,” made the point more forcefully, in part by citing statistics to indicate that death sentences by judicial overrides in Alabama peak in election years. “Because judicial candidates frequently campaign on their support and enthusiasm for capital punishment,” the report states, “political pressure injects unfairness and arbitrariness into override decisions.”
The report indicates that political pressure does not run the other way. In only nine cases have Alabama judges overridden jury recommendations to impose the death penalty in favor of a life sentence instead. And Alabama judges do not impose death sentences only after closely divided jury votes; in more than a dozen cases, judges sentenced defendants to death after jurors voted unanimously for life sentences.
In her opinion, Sotomayor also argued that the judicial override practice in Alabama runs afoul of the Supreme Court’s line of precedents — the so-called Apprendi cases — requiring jury instead of judicial fact-finding to raise a defendant’s sentence above the statutory minimum. (Breyer, a dissenter from those decisions, did not join that part of Sotomayor’s opinion.) As Sotomayor detailed, the judge in the case under review sentenced Mario Woodward to death for the killing of a Montgomery police officer after rejecting the jury’s 8-4 finding of mitigating factors based on Woodward’s abused childhood and his good relationship with his five children. Under Apprendi, Sotomayor wrote, “a sentencing scheme that permits such a result is constitutionally suspect.”
Justices use dissents from cert denials in part to highlight issues for possible later consideration. It takes only four votes to grant certiorari, so one question about Woodward’s case is why the other liberal justices — Ruth Bader Ginsburg and Elena Kagan — failed to join Sotomayor’s opinion. Perhaps they thought the case a poor vehicle to raise the issue: the mitigating factors in Woodward’s favor do appear somewhat flimsy. Or perhaps they feared that the liberal bloc could not persuade Justice Anthony M. Kennedy to provide a fifth vote against Alabama’s judicial override practice, at least not now. Still, Sotomayor laid out a strong case that Alabama’s lightning-strike death penalty system deserves “a fresh look.”
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