Nation Topics - Law
Crime Supreme Court Death Penalty Drug War and Drug Policy Guns and Gun Control Immigrant Detention Centers Immigration Increased Security After 9-11 International Law Jails and Prisons Lawsuits Police and Law Enforcement Police Brutality Profiling Separation of Church and State The Constitution The Courts
News and Features
A Mexican migrant acquaintance once told me that he'd love the opportunity to brief Congress on immigration policy. Let us imagine him now, walking into the hallowed chamber, dressed in his typical migrant attire: a fading Oakland Raiders jersey, oversized bright orange painting pants, imitation Air Jordans. He wears a baseball cap with the epigram ¡qué viva México, cabrónes! rendered in red, green and white--the colors of the Mexican flag. He reaches into his well-worn backpack and pulls out some handwritten notes on crumpled sheets of paper, and begins:
First, I would like to tell the distinguished sirs and madams a bit about the migrant life. I'm from a luckless southwestern Mexican town whose timber-based economy is in tatters--no sign of economic development on the horizon, NAFTA or no. I made my first trip to the States at 13, a solo journey that included a few months of indentured servitude to a "coyote," a real cabrón. I paid off what I owed him by picking aluminum cans out of the garbage. When I finally broke free, I took to the road.
I never had a problem getting a job. With a cheap forgery of a green card, the bosses never looked twice. As the years went by, I cruised from state to state. I got married to a girl from home and soon we were on the road together, hopping back and forth across the border that supposedly separates our nations.
Beginning in the latter half of the 1990s, our border-crossings became increasingly difficult. Suddenly, you built walls on the US-Mexico border. Big ones, made of coppery steel. These you have referred to as "interdiction measures," which include programs with names like Gatekeeper, Safeguard and Hold the Line. Since 1995 as many as 1,400 migrants died on that line, pushed by your Border Patrol into the remote, deadly desert and lonely stretches of the Rio Grande.
You recently deployed the first of more than 1,600 National Guard troops along the frontiers with both Canada and Mexico, to provide "tactical" support to the other agencies on the line. The last time you put the military on the line, the result was the shooting of an 18-year-old who was out herding his goats; you did the sensible thing and pulled them out. Now they're back; so far, thankfully, they are unarmed.
I tell you that this is a dangerous situation, and yet, in the wake of September 11--when I grieved as much as if Mexico herself had been attacked--I am mindful of your security concerns. I submit to you that you cannot secure your borders alone. I humbly suggest consultations at the highest levels between the federal law-enforcement agencies of our two countries, a starting point for recognizing that American homeland security is Mexican homeland security and vice versa.
We must re-imagine the border between us. All the money you've poured into "holding the line"--some $4 billion a year for the total INS budget--does nothing of the sort. Yes, it makes it more difficult, and sometimes deadly, to cross. But we still do cross back and forth over that line.
Dear legislators, I watch CNN en Español and have been following your recent debates over immigration policy very carefully. Let us speak frankly here: You've been playing an age-old shell game--appeasing the rabid dogs of nativism but leaving the border open enough to supply labor to big business, which keeps getting you re-elected.
What a great buzz there was in the migrant communities before 9/11! You were speaking (well, some of you) about an amnesty--pardon me, a regularization--of the immigration status of the nearly 9 million estimated "illegals" in your midst. Then for several months you shied away from such discussions. But now your President is on his way to Latin America, and he will meet with my President. It is clear to us, the migrants, that these men want to see some movement on the issue--Bush, to bolster his standing among Latinos and his business cronies, and Fox, to please paisanos like me--but this makes many of you uncomfortable. I know why. It's Al Qaeda and the Taliban. Now, I might look a bit like Caliban (especially in these surroundings), but I'm no Taliban, no terrorist! What are my weapons? Leaf blowers and dishrags?
You must place regularization and some version of a "guestworker" program back on the fast track. Everybody wins with real reform: Your labor-hungry industries will be happy, and you might even get some of that coveted Hispanic vote. But you need to understand one thing: We migrants will not accept any kind of program modeled on the infamous, exploitative Bracero Program. Braceros, my grandfather among them, had no right to leave an abusive boss, had no recourse to better their working conditions and wages, could not join unions. The guestworker program of the new century must give us the rights that all American workers enjoy. And there must be a mechanism for affording those workers who spend, say, six years living and working in your country the opportunity for permanent legal status.
When Vicente Fox rose to power two years ago, he made a statement that caused you much anxiety: He foresaw the border between the United States and Mexico disappearing within a decade. I tell you today that this prophecy will come to pass. There are no lines in nature, dear sirs and madams. The fact that I am here before you today proves that this is so. I thank you for your kind consideration in allowing me to speak before you today. ¡Qué vivan los mojados! Long live the migrants!
Targeted by authorities, immigrants are organizing to defend their rights.
From Afghan farms into the Tajik mountains, the drug trade cuts a wide swath.
Boston's Bernard Cardinal Law deserves the Watergate Award for Obfuscatory Declamation: He has characterized his nearly two decades of cover-up of felonies--namely, the rape and molestation of hundreds of Boston-area children by scores of priests--as "tragically incorrect." Records uncovered by the Boston Globe's Spotlight Team disclose the shocking extent to which Law's cold-shouldering of young victims made him an enabler of known recidivist pedophiles, including former priest John Geoghan, whose thirty-six-year spree of child sexual exploitation ended in a prison sentence on February 21.
Over and over, Law sought to pay hush money to victims of known molesters and then moved the predators to new parishes, where they once again had access to children. For years Law counted on the cooperation of several judges who, sharing his belief that the faith of rank-and-file church members might not survive a reckoning with the truth about the priestly criminals in their midst, moved to seal archdiocese files. Even as the child-rape stories were breaking, Law permitted his lawyers to pursue a defense based on "comparative negligence"--the theory that the abuse was partially due to victims' negligence.
Ever since Superior Court Judge Constance Sweeney's November ruling forced public release of documents detailing the crimes, the Cardinal's voice has had a from-the-bunker timbre. At his official residence, Law has been hunkered down with wealthy male advisers from Boston's Catholic elite--bankers, executives, university presidents and politicians who together calibrate the spin of each statement that issues from the Chancery. But sometimes a furious Law bursts through the kitchen-cabinet insulation: His Nixonian response to the news that nearly half of polled Boston Catholics want him to resign--including those faithful who keep a Law-Must-Go vigil in front of his residence--was to declare them enemies of the Church. His persistent disparagement of the Globe reporters who sued to unseal those documents is not a response to stress; it's his longstanding M.O. In 1992, after the Globe exposed Father James Porter as a serial rapist, the cosmopolitan Harvard-man Cardinal inveighed, "By all means, we call down God's power upon the media, particularly the Globe."
While the US Catholic Church has so far paid out $1 billion in settlements for clerical molestation cases, the predator priests are less emblems of fatal flaws in doctrine--including the doctrine of celibacy--than they are evidence of the mortal danger posed by any institutional leadership that perpetuates the myth that it is answerable to no laws but its own. (This presumption of immunity has taken an ominous new turn, as bishops across the country fling priests alleged to have molested from their jobs: As one Massachusetts picket sign reads: There Is No Due Process in Cardinal's Law.) Protestants have sustained public-relations catastrophes and paid huge sums for years of cover-ups: In December the Anglican Church of Canada announced that ten of its thirty dioceses are facing bankruptcy as a result of child sexual-abuse claims. Australian Governor General Peter Hollingworth faces mounting cries for his resignation since evidence surfaced that while he was an archbishop, he grossly mishandled cases of pedophilia. The children sexually exploited by Deacon Robert Tardy of Washington's Peace Baptist Church have never heard one word of apology from church authorities. Predators and their protectors are also ensconced within synagogue walls. This past summer Boca Raton's Jerrold Levy, rabbi of the largest Reform congregation in the South, was prosecuted for procuring underage boys in four states via the Internet. After he was convicted on one count, federal prosecutors abruptly reversed their sentencing recommendation from sixty years to six and a half, reportedly because of pressure from influential synagogue members. Several weeks ago Cantor Howard Nevison of Manhattan's famed Temple Emanu-El was arrested for an alleged two-generation-long rampage of child rape; some suspect his low bail is connected to Manhattan DA Robert Morgenthau's position as a trustee of Nevison's temple.
As Law's regime wrapped a blanket around criminals in the priesthood, it swung a terrible swift sword in the direction of women aspiring to fuller participation in Catholic liturgy. Two years ago, an organization called Massachusetts Women-Church, made up primarily of lifelong-Catholic mothers and grandmothers advocating the ordination of women, was banned by Law from church-affiliated buildings. When members picketed outside a church, Law shouted at them, "You are in violation of your faith!"
Treating women as contaminants and children as invisible while coddling criminals in Roman collars allowed Boston's imperial bishopric to shore up support for Law's real goal: making a permanent move to Rome as the first American Pope. If Law had been, say, director of a daycare center or a summer camp, he would probably be on his way to jail. But with powerful people at his elbows, Law is as unlikely to serve prison time as he was to let the violated bodies of children get in the way of his career building. When Boston Catholics finally force him out, he'll probably be humming "My Way" as he packs his bags.
In my last column, I mentioned that most actual drug users are young white people, even though most of those "profiled" as drug users are people of color. Indeed, according to the Sentencing Project, 72 percent of all illegal drug users are white.
But profiling is further vexed by the eternal question of how one determines who is white and who is not. In today's diasporic world, racial identity or "whiteness" is less determined by lines of "blood" or descent than it once was in certain Southern states. Today, whiteness is more dominantly a matter of appearance, based on malleable aesthetic trends.
This point--the malleability of how we assign "race" to people--is certainly illustrated by the example of Noelle Bush, to whom I referred as white. I received much mail insisting that she is not in fact white but Latina "because her mother is." It's an interesting question, this: the potential tension between "actual" and actuarial determinations of race. But first, let us agree that although there is no biological reality of race, the force of race is a powerful if constantly negotiated sociocultural construction, and has been since colonial times. Second, allow me to sidestep for now the complex anthropology of whether being Latina is determined matrilineally, thus canceling out her conspicuous Puritan patrimony. Third, let us also agree that recent migrations from Latin America have increasingly complicated national demographics as historically inflected by Jim Crow laws. And so, while "Latina" seems to be used as a racial category when it comes to most compilations of criminal justice statistics (meaning brown people from south of the border, of mixed Spanish, African and Native American descent), the reality is that not all Latinos are people of color. Indeed, "Latino" is perhaps more accurately understood as a broad linguistic, regional and cultural category rather than a racial one.
In any event, I called Ms. Bush white because, in photographs, that's what she looked like to me, admittedly through all the filters of my particular geographic and generational prism. At the same time, a number of letters pointed out that Noelle Bush and her brother are the grandchildren whom George Bush the Elder once described as "the little brown ones." This underscores the essential irrationality of profiling by appearance alone: If old George and I (just let your imagination wander here) were working as airport screeners, side by side and in accordance with the logic of most racially based profiling guidelines, he'd have stopped her, and I'd have waved her through. "But she's really..." has no fixed meaning in such profiling. This is not a new aspect of racial scrutiny; in generations past, perhaps, Noelle Bush's status might have been familiar as that of Tragic Mulatta. In today's more global context, I re-examine her picture and note how she resembles supermodel Christy Turlington--herself endlessly exploited for the vaguely "exotic" racial ambiguity that her mother's Ecuadorean "blood" supposedly lends her. But however one may or may not want to classify Ms. Bush, the existence of a confused limbo of those who can "pass" does not alter the fact that once classified as "suspect," as are too many of the unambiguously dark-skinned, the license of heightened investigation significantly colors the fundamental counterpresumption of innocent until proven guilty.
Let me shift topics here. One striking feature of virtually all the letters I received was the application of the word "smug" to my description of "Governor Jeb Bush's poor daughter, Noelle." This attribution was attended by detailed accusations, all starting with the word "impliedly." I impliedly took delight in the Bush family's suffering. I impliedly reveled in her getting what she deserved. I impliedly used the daughter to make fun of the father.
A little clarification is perhaps in order. When I said "poor Noelle," I meant it, with no irony attached. Whether fueled by biological predisposition or depression, substance abuse knows no political, class or ethnic boundary. Poor Prince Harry, poor Betty Ford, poor Robert Downey Jr., poor not-a-few Kennedys. I don't find a single bit of enjoyment in what is clearly a pervasive modern crisis. If one must project, let me provide some guidance. I see our crisis of drug dependency as a medical or mental health issue rather than a criminal cause. This stance obviously places me at odds with the Prohibition-era policies of Jeb and both Georges. It doesn't mean I doubt that Governor Bush is less desperately concerned about the fate of his daughter than any other father. He believes the war on drugs is to the greater good; I think it woefully misguided. Asserting such disagreement about the efficacy of policy is democratic, not inherently disrespectful.
I also agree with those who counsel against publishing the unruly actions of children, whether their parents happen to be in the limelight or not. I believe minors, defendants or witnesses, deserve protection from the media. But Noelle Bush is well over 21, has had five traffic violations, seven speeding tickets and three car crashes and was convicted of impersonating a doctor in order to fraudulently obtain a prescription. The actions of adults who are brought before the criminal justice system are appropriately the subject of public record. Noelle Bush was given probation and referred to a drug treatment center. Who's to say if that's what she "deserved," but most likely it's what she, and so many others like her, needs. Where her example might be of continuing public interest is in contrasting her fate with that of poorer women, who, if convicted of drug offenses, are ineligible for welfare benefits for life. And in a case recently before the Supreme Court, an elderly woman whose retarded granddaughter smoked a joint three blocks away from her house was evicted from public housing based on her "relation" to drug use or sale. If such rules were applied across the socioeconomic spectrum, we'd have to ask Jeb Bush to give up the governor's mansion. It is, after all, public housing. I know--some of you will be affixing meanspirited, giggling gratuity to that image, but my point is rather the sad absurdity of it.
In all this, the bottom-line concern is whether fundamental fairness remains the measure of how we treat anyone--rich or poor, white or Latino, anonymous minor or poor Noelle.
Mississippi Congressman Bennie Thompson says it's like this: If judicial nominee Charles Pickering is confirmed by a Democratic Senate, the Bush Administration will have a green light to pack the federal courts with judges openly hostile to basic principles of equal justice under the law. "It amazes me that in 2002 a man who has a questionable record of support for 'one man, one vote' is seriously considered for a federal appeals court judgeship--but that's what we've got with Charles Pickering," Thompson says of the Mississippi federal judge nominated by Bush to the Court of Appeals for the Fifth Circuit. "If he is confirmed, the message will be that there are no expectations left, no standards for selecting judges."
Harsh words, especially from a judicial nominee's home-state representative. But the Pickering nomination has inspired the sharpest debate yet regarding the President's judicial nominees. Republican Senator Arlen Specter says Pickering displays "a curious ambivalence" about using the court to protect voting rights, while NAACP board chair Julian Bond says "a vote for Pickering is a vote against civil rights." That's a particularly dramatic charge regarding a nominee to the Fifth Circuit, which oversees civil rights protections in Louisiana, Texas and Mississippi, and has the highest percentage of African-Americans of any circuit.
The Mississippi State Conference of the NAACP and the predominantly black Magnolia Bar Association are working to block Pickering's nomination. "We hope to God that he doesn't make it," explains L.A. Warren, chair of the state NAACP's Legal Redress Committee. "We know his past." As a law student, Pickering penned a 1959 law review article that showed legislators how to tighten Mississippi's ban on interracial marriage. In the 1960s Pickering established a law practice with one of the state's most outspoken segregationists. He joined white business elites in his hometown of Laurel in opposing the worst excesses of the local Ku Klux Klan, but he also signed an open letter declaring he was working along more genteel lines to maintain "our Southern way of life." As a state senator in the 1970s, Pickering repeatedly advocated election "reforms" that the Justice Department knocked down as assaults on African-American empowerment, and he supported funding the notorious Mississippi Sovereignty Commission's efforts to block desegregation. As a federal judge since 1990, Pickering has described the "one person, one vote" principle as "obtrusive," attacked moves to draw legislative districts that could be won by African-American candidates as "polarization" and repeatedly attempted to limit application of Voting Rights Act provisions in Mississippi. In lawsuits before him involving racial discrimination in the workplace, Pickering has griped that courts "are not super personnel managers charged with second-guessing every employment decision regarding minorities."
At least eleven of the two dozen Pickering decisions overturned by the Fifth Circuit were rejected for violating well-settled principles of law involving civil rights, civil liberties, criminal procedures and labor rights. In 1994 Pickering intervened with the Justice Department to try to get the government to soften charges against a man who had burned an eight-foot cross outside the home of an interracial couple, claiming the defendant had merely engaged in a "drunken prank."
After Pickering stumbled badly in Judiciary Committee hearings--which raised ethics concerns about his role in the cross-burning case, his solicitation of letters of recommendation from lawyers and groups that might face his court, and his deceitful testimony about his ties to the Sovereignty Commission--his nomination was in trouble. But it was revived by conservative groups, which recognize that confirmation of such a nominee would ease the way for later Bush picks, and by antiabortion activists who have championed Pickering since he led the fight at the 1976 Republican National Convention for a platform opposing reproductive freedom. Pickering has a powerful ally in Senate minority leader Trent Lott, who says conservative Southern Democrats will help him confirm Pickering if a full Senate vote is scheduled. Lott charges that Pickering is the victim of a "smear" campaign.
That spin was aided by a New York Times article asserting that the African-Americans who know Pickering best "admire his efforts at racial reconciliation" and "overwhelmingly" support his nomination. Based only on interviews with African-American residents of Laurel, the Times article claimed that a disconnect between national groups' opposition to Pickering and Mississippi blacks' support for him "reflects the distance between national liberal groups and many Southern blacks in small towns." Newspapers with a better sense of the South dismissed this view; the Atlanta Journal-Constitution editorialized, "US jurisprudence came too far in the late 20th century to allow it to lapse back into a time when Pickering's prejudices reigned." But the claim that critics have focused unfairly on Pickering's record on race was picked up by conservative newspapers. The Wall Street Journal highlighted a pro-Pickering column by Mississippi's most prominent black Republican, Charles Evers, and the Washington Times wrote, "Liberal organizations have tried to label Judge Pickering as a racist, but black leaders in Mississippi are vocally backing the nominee as a friend of their community."
In fact, it was Mississippi blacks who first raised the alarm about Pickering's nomination. "I wish the New York Times would ask people like me what we think of Charles Pickering," says Kathy Egland, who joined the 1960s civil rights movement in Hattiesburg at the age of 10. "I have been involved in civil rights in Mississippi for forty years, and I'll tell you this: No one in the Mississippi NAACP who knows this man's record is saying that he has ever been a supporter of civil rights."
On October 31 Governor Jane Swift of Massachusetts pardoned five women who had been convicted and executed in the Salem witch trials in 1692. Well, better late than never--what's a few centuries one way or another? Once you're dead you have all the time in the world. It's the living for whom justice delayed is justice denied, and on that score Governor Swift is not doing so well. On February 20 she rejected the recommendation of the state parole board, known for its sternness and strictness, and refused to commute the thirty-to-forty-year sentence of Gerald Amirault, who was convicted in the 1986 Fells Acre Day School child sex abuse case and who has already served sixteen years in prison. Violet Amirault and Cheryl Amirault LeFave, his mother and sister, who were convicted with him, served eight years before being released.
Since the l980s, when a wave of now notorious prosecutions of alleged ritual child sex abuse swept the country, many of the techniques used to elicit children's stories of abuse have been discredited: leading and coercive questions, multiple reinterviews, promises of rewards, suggestive use of anatomical dolls. It's no longer iron-clad doctrine that certain behaviors, like bed-wetting, masturbation and sexualized play, reliably indicate sex abuse. The slogan of the prosecution and the media was "believe the children"--but what that really meant was don't believe the children if they insist that nothing happened, if they like going to daycare and readily hug their alleged abusers; only believe the children when, after relentless questioning by interviewers, therapists and parents, they agree that something terrible happened and eventually come to believe it, as the Fells Acre children, now young adults, still do. As Dan Finneran, the Amiraults' lawyer until 2000, puts it, the case represents "a closed system of thought: denials, recantations and failure to remember are categorized as manifestations of repression and fear and thus stand as confirmations of actual abuse." If no means yes, and yes means yes, how do you say no?
All these issues featured in the Amirault case. The result was that a respected working-class family who had run a popular daycare center in Malden for twenty years--a place that parents were constantly popping in and out of--were convicted of a total of twenty-six counts of child abuse involving nine children in trials that included accusations of extravagant and flamboyant sadistic behavior: children being anally raped with butcher knives (which left no wounds), tied to trees on the front lawn while other teachers watched, forced to drink urine, thrown about by robots, tortured in a magic room by an evil clown. One child claimed sixteen children had been killed at the center. Obvious questions went unasked: How come no kids who went to Fells Acre in previous years had these alarming experiences? Why was an expert witness permitted to testify about a child-pornography ring when no pornographic photos of the Fells Acre kids were ever found?
Governor Swift made a big show of looking seriously and long at Gerald Amirault's case, but she failed to consider the central question, that of whether he was guilty of any crime. Indeed, Swift made Gerald's refusal to admit guilt and get treatment as a dangerous sexual predator a centerpiece of her decision--but why should an innocent man have to say he's guilty to get out of jail? Gerald has been a model prisoner: He's taken college courses, he has worked, he has a flawless record. He has the total support of his wife and children and a job lined up in anticipation of his release.
Swift claims that her main consideration was whether Amirault's sentence was in line with those of others convicted of similar crimes. She cited the case of Christopher Reardon, a lay Catholic church worker who pled guilty to seventy-five criminal counts of abusing twenty-nine boys last summer and received a forty-to-fifty-year sentence. But the case against Reardon was open and shut; he took photos and videos, and even kept spreadsheets detailing his crimes. The real cases to compare with Amirault's are those of his mother and sister, who were convicted of the same crimes, although slightly fewer of them. Cheryl Amirault LeFave and Violet Amirault received sentences half as long and were released after serving half as many years as Gerald. Does Gerald's being a man have something to do with these disparate outcomes? Absolutely. The women benefited from the leniency still--if fitfully--bestowed by the justice system on women. Moreover, as the case against the Amiraults came to look more and more troubling with hindsight, the original scenario, in which the three were equally involved in molesting children, was replaced by a theory, never put forward during the trials, that Gerald was the ringleader and the women his dupes. How could this be? The evidence against the three was the same.
At her press conference, Governor Swift refused to discuss the case against Gerald and three times declined to respond when asked how he had failed to demonstrate good behavior in prison. The clear implication is that her motives were political: With Massachusetts in an uproar over the ongoing scandal of pedophile priests, to commute Gerald Amirault's sentence would have made her vulnerable in November when, as a not very popular or experienced Republican appointee, she faces an uphill struggle for election. What an irony--the Catholic Church protects genuine child molesters for decades and thereby creates a political situation in which an innocent man is trapped in jail. But Swift's calculation is backfiring. The Boston Globe, the Boston Herald, the Boston-based Christian Science Monitor, the Berkshire Eagle in Swift's home county have all editorialized against her decision; polls show wide support for Amirault's release.
Massachusetts--liberal, modern, technocratic Massachusetts--is the only state in which people convicted in the 1980s wave of ritual child abuse cases are still in prison. Bernard Baran, whose case shares many features with that of the Amiraults, with the added strike against him of being homosexual, has been incarcerated for almost half his life. Meanwhile, Scott Harshbarger, the DA who originally prosecuted the Amirault case, is now head of Common Cause. Will it take another 300 years for the state to acknowledge that Salem was not its last miscarriage of justice?
The hoofprints of Lucifer are everywhere. And since this is America, eternally at war with the darker forces, the foremost Enemy Within is sex, no quarter given. Here are some bulletins from the battlefront, drawn from a smart essay on "Sex & Empire" in the March issue of The Guide (www.guidemag.com), a Boston-based monthly travel magazine that has "about the best gay sex politics around," according to Bill Dobbs of Queerwatch, whom I take as my adviser in these matters.
In February 2000, Matthew Limon, an 18-year-old, had oral sex with a 14-year-old schoolmate. A Kansas court sentenced him to seventeen years in prison, a sentence duly upheld by a federal court in February. Last July, an Ohio court sentenced 22-year-old Brian Dalton to seven years in prison because of sex fantasies he wrote in his diary. A woman teacher in Arizona faces 100 years in prison for having an affair with a 17-year-old boy. Frankly, I'd have risked two centuries in prison to have sex with Miss Hollister when I was in school.
Apropos the triumph of identity politics across the past thirty years, Bill Andriette, the author of "Sex & Empire," remarks that "the same PR machinery that produces all these feel-good identities naturally segues into manufacturing demonic ones--indeed, creates a demand for them. The ascription of demonic sexual identities onto people helps drive repression, from attacks on Internet freedom to sex-predator laws. Identity politics works gear-in-gear with a fetishization of children, because the young represent one class of persons free of identity, the last stand of unbranded humanity, precious and rare as virgin prairie."
This brings us into an Olympian quadruple axel of evil: sexually violent predators (familiarly known as SVPs), preying on minors of the same sex. There's no quarreling between prosecutor and judge, jury and governor, Supreme Court and shrinks. Lock 'em up and throw away the key.
The other day I listened to Marita Mayer, an attorney in the public defender's office in California's Contra Costa County, describe the desolate business of trying to save her clients, SVPs, from indeterminate confinement in Atascadero, the state's prime mental bin.
Among Mayer's clients are men who pleaded guilty to sex crimes in the mid-1980s, mostly rape of an adult woman, getting a fixed term of anywhere from ten to fifteen years. In the old days, if you worked and behaved yourself, you'd be up for parole after serving half the sentence.
In California, as in many other states, SVP laws kicked in in the mid-1990s, crest of the repressive wave provoked by hysteria over child sex abuse and crime generally: mandatory minimum sentences, erosion of the right to confront witnesses, community notification of released sex offenders, surgical and chemical castration, prohibition of mere possession of certain printed materials, this last an indignity previously only accorded atomic energy secrets.
So California passes its SVP law in January of 1996, decreeing that those falling into the category of SVP have a sickness that requires treatment and cannot be freed until a jury agrees unanimously that they are no longer a danger to the community. (The adjudicators vary from state to state. Sometimes it's a jury, or merely a majority of jurors, sometimes a judge, sometimes a panel, sometimes a "multidisciplinary team.")
Mayer's clients, serving out their years in Pelican Bay or Vacaville or San Quentin, counting the months down to parole date, suddenly find themselves back in jail in Contra Costa County, told they've got a mental disorder and can't be released till a jury decides they're no danger to the community. Off to Atascadero they go for a two-year term, at the end of which they get a hearing, and almost always another two-year term.
"Many of them refuse treatment," Mayer says. "They refuse to sign a piece of paper saying they have a mental disease." Of course they do. Why sign a document saying that for all practical purposes you may well be beyond reform or redemption, that you are Evil by nature, not just a guy who did something bad and paid the penalty?
It's the AA model of boozing as sin, having to say you are an alcoholic and will always be in that condition, one lurch away from perdition. Soon everything begins to hinge on someone's assessment of your state of mind, your future intentions. As with the damnable liberal obsession with hate-crimes laws, it's a nosedive into the category of "thought crimes."
There the SVPs are in Atascadero, surrounded by psych techs eager to test all kinds of statistical and behavioral models, along with phallometric devices designed to assist in the persuasion of judge and jury that, yes, the prisoner has a more than 50 percent likelihood of exercising his criminal sexual impulses, should he be released.
Thus, by the circuitous route of "civil commitment" (confining people deemed to be a danger to themselves or others), we have ended up with a situation that from the constitutional point of view, is indeed absolutely Evil: people held in preventive detention or being locked up twice for the same crime.
"It's using psychiatry, like religion, to put people away," Mayer concludes. "Why not hire an astrologer or a goat-entrail reader to predict what the person might do? Why not the same for robbers as for rapists? What's happening is double jeopardy. People don't care about child rapists, but the Constitution is about protections. How do I feel about these guys? When I talk to my clients I don't presume to think what they'll do in the future. I believe in redemption. I don't look at them as sexually violent predators, I see them as sad sacks. They have to register; they could be hounded from county to county; even for a tiny crime they'll be put away. Their lives are in ruin. I pity them."
But not goat entrails, surely. The animal rights crowd would never stand for it.
Pat Buchanan surely holds the record for the greatest impact on a presidential election with the fewest votes. With less than 0.43 percent of the tally nationally, he still managed to decide the 2000 election. But for the thousands of votes mistakenly cast for Buchanan in Palm Beach because of the infamously confusing "butterfly" ballot, Al Gore would be President today and George W. Bush would be the Republican Michael Dukakis.
Buchanan's pernicious influence, however, did not end with the 2000 election. He's now picking up where he left off with his infamous "cultural war" speech to the 1992 Republican convention, a speech, as Molly Ivins quipped, that "sounded better in the original German." Well, Buchanan's been translating from Deutsch again, this time with The Death of the West: How Dying Populations and Immigrant Invasions Imperil Our Country and Civilization, his new book. The Death of the West harks back to the xenophobic jeremiads of the early twentieth century, such as Madison Grant's The Passing of the Great Race, Lothrop Stoddard's The Rising Tide of Color, Houston Stewart Chamberlain's The Foundations of the Nineteenth Century and Oswald Spengler's The Decline of the West.
Indeed, enterprising journalists and historians looking to expose the next Stephen Ambrose or Doris Kearns Goodwin should consider comparing Buchanan's book side by side with these others. In addition to revising Spengler's title, Buchanan shares Stoddard's love of watery metaphors--both books gush with rising tides, surging oceans and flooding rivers of nonwhites, all of which push inexorably against the ever more precarious dams and dikes around the white world. The two authors also share a predilection for quoting Rudyard Kipling, the poet laureate of the "white man's burden."
Each of these earlier books shares the same simple theme: It's Us against Them, and with fewer and fewer of Us and more and more of Them, things look grim for Us. Buchanan readily accepts the "demography is destiny" argument: "As a growing population has long been a mark of healthy nations and rising civilizations, falling populations have been a sign of nations and civilizations in decline." Buchanan's data clearly put the West into the latter category. "In 1960, people of European ancestry were one-fourth of the world's population; in 2000, they were one-sixth, in 2050, they will be one-tenth. These are the statistics of a vanishing race."
And who's responsible for this disappearance? For Buchanan, women bear most of the blame. Liberated by technological and cultural changes, he argues, Western women have abandoned their true calling as designated racial breeders. "Only the mass reconversion of Western women to an idea that they seem to have given up--that the good life lies in bearing and raising children and sending them out into the world to continue the family and nation--can prevent the Death of the West."
Faced with declining birthrates, the only alternative available to Western nations if they wish to maintain themselves is massive immigration from the burgeoning populations of Asia, Africa and the Middle East. But for Buchanan, this medicine is worse than the disease, since immigration on this scale entails the introduction of too many nonwhite non-Christians. Regarding Europe, he writes: "And as the millions pour into Europe from North Africa and the Middle East, they will bring their Arab and Islamic culture, traditions, loyalties, and faith, and create replicas of their homelands in the heartland of the West. Will they assimilate, or will they endure as indigestible parts of Africa and Arabia in the base camp of what was once Christendom?" Clearly he thinks the latter. The United States faces a similar danger, he warns: "Uncontrolled immigration threatens to deconstruct the nation we grew up in and convert America into a conglomeration of peoples with almost nothing in common--not history, heroes, language, culture, faith, or ancestors. Balkanization beckons."
Buchanan must know that many have rung this tocsin before him, and each time it has been a false alarm. The West's population has probably declined relative to the rest of the world ever since the Western world defined itself as such. For example, when Stoddard wrote in 1922, he sounded the alarm because Western nations had declined to only one-third of the world's population. By 1960, as Buchanan points out, the Western share of the world's population had fallen to one-fourth. Despite this relative decline in population, he considers 1960 as the height of Western power and influence. Furthermore, most evidence suggests that Western nations are at least as powerful now as in 1960, even with the decline in population.
Buchanan's warnings about the United States ring just as hollow. Of the 30 million foreign-born residents, he claims, "Even the Great Wave of immigration from 1890 to 1920 was nothing like this." He's right--that wave surpassed the current one. Today, foreign-born residents make up about 11 percent of the US population, but from the 1870s to the 1920s, that number fluctuated between 13 percent and 15 percent.
Buchanan, however, also argues that today's immigrants are fundamentally different from earlier generations of newcomers; but again, there's no evidence for this. America was hardly more familiar to a Southern Italian peasant who came to New York City in 1900 than it is to an immigrant today from Nigeria or the Philippines. If anything, the spread of global markets and American popular culture has made recent immigrants more attuned to the ways of their new home than their predecessors of a century ago. Furthermore, the bulk of contemporary immigrants come from Latin America, and thus possess the Christian faith that Buchanan views as central to any definition of America. Indeed, the vast majority of Latin American immigrants share Buchanan's Catholicism. Nonetheless, these immigrants "not only come from another culture, but millions are of another race," making it difficult if not impossible for them to assimilate into US society. While Buchanan might consider Latinos as his brothers in Christ, he draws the line at having them as neighbors or fellow citizens.
September 11, Buchanan argues, painfully exposed the threat from contemporary immigrants: "Suddenly, we awoke to the realization that among our millions of foreign-born, a third are here illegally, tens of thousands are loyal to regimes with which we could be at war, and some are trained terrorists sent here to murder Americans." But the past is full of similar warnings about the enemy within. During World War II, anti-Japanese prejudices combined with national security concerns to result in the internment of thousands of US citizens. During World War I, "unhyphenated" Americans saw German-Americans as the Kaiser's minions, engaging in sedition and sabotage to aid the cause of the Fatherland. Yet as these instances demonstrate, the real threat, then as now, existed largely in fevered nativist minds.
This selective and myopic view of American nativism runs throughout The Death of the West. On the one hand, Buchanan refers to nativist statements by such people as Benjamin Franklin, Theodore Roosevelt and Calvin Coolidge to support his assertion that concerns over immigration are not un-American. On the other hand, while he is correct that nativism has always been one of America's multiple political traditions, Buchanan has nary a mention of how pervasive, inaccurate and pernicious such sentiments have been. Of the Know-Nothings, he knows nothing. He quotes Al Smith, the first Catholic nominated for the presidency by a major party, but includes no mention that anti-Catholic prejudices made a major contribution to his landslide defeat in the 1928 election, as he was vigorously opposed by Protestant leaders and groups such as the Ku Klux Klan. (After the election, the joke went, Smith sent a one-word telegram to the Pope: "Unpack.") To Buchanan, it seems, anti-Catholic sentiment is a recent development and limited to left-wing intellectuals. Overall, he chooses to ignore the fact that nearly every immigrant to this country confronted nativists who argued that their race, religion, ethnicity or culture made them unfit to become full American citizens. Furthermore, if these previous nativists had had their way, they would have excluded the ancestors of most current American citizens, including Buchanan's.
Buchanan recognizes that he's in a minefield with this subject, and he makes some efforts to tread lightly. To rebut accusations that he's an anti-Semite, he sheds crocodile tears over the danger to Israel from a growing Arab population and occasionally (but not consistently) refers to America's Judeo-Christian values. But like Dr. Strangelove's hand, Buchanan's anti-Semitism refuses to stay under control. As examples of conservative leaders who have failed to fight the culture wars with sufficient zeal, he singles out Irving Kristol, Gertrude Himmelfarb and Norman Podhoretz. One might well ask why these three when one could level similar charges against Jack Kemp, Bob Dole, John McCain and even George W. Bush.
By the end of the book Buchanan has dropped all pretenses, declaring America to be a Christian nation. His racism is equally apparent. For example, in addition to warning that many current immigrants are of a different--that is, nonwhite--race, he includes a lengthy discussion of black crime rates. Given that most blacks can trace their American ancestry back further than most white Americans, it's clear that Buchanan defines America not by "history, heroes, language, culture, faith, or ancestors" but by race.
If Buchanan's diagnosis of the problem is objectionable, his solution is even worse. For him, democracy, a shared culture and even a common race offer no defense against the West's impending doom. Rather, he argues, "If the West expects a long life, it had best recapture the fighting faith of its youth." And what were these youthful characteristics? "Protestant monarchs and Catholic kings alike did not flinch at burning heretics or drawing and quartering them at the Tyburn tree. The Christianity that conquered the world was not a milquetoast faith, and the custodians of that faith did not believe all religions were equal. One was true; all the rest were false." To believe otherwise invites disaster, "For it is in the nature of things that nations and religions rule or are ruled."
Buchanan's right-wing nativism is nothing new, so it might be tempting to dismiss him and his book as inconsequential. After all, didn't the 2000 election prove that Buchanan had only marginal electoral support and that even the Republican Party considers his views too extreme? But votes don't always measure influence, and The Death of the West has clearly struck a responsive chord. Not only does it stand near the top of the New York Times bestseller list, but its author remains a prominent fixture on the TV talk-show circuit. Indeed, it's interesting to contrast the reception of The Death of the West with that of Buchanan's previous book, A Republic, Not an Empire. The latter set off a firestorm of criticism, especially among Republicans and conservatives, when Buchanan argued that Hitler had not threatened the United States. If anything, The Death of the West is even worse, since Buchanan moves beyond minimizing the danger of Hitler to the open espousal of many of his doctrines. Yet this time around, the conservative commentators have not been nearly as critical. Then, of course, Buchanan was in the middle of bolting the GOP, potentially splitting the conservative vote and throwing the election to the Democrats. None of this came to pass, with Buchanan even helping Bush to win Florida. But the lesson seems clear: Conservatives are more than willing to tolerate Buchanan's racism and xenophobia, so long as he doesn't pose a direct threat to their political interests.
Even more disturbing than Buchanan's kid-gloves treatment by the media and the right is that the book's popularity stems from and seems likely to reinforce the upsurge in nativist sentiments after September 11. For many Americans, those tragic events gave even more reason to see the world in manichean terms and to divide Americans along lines of race, religion and ethnicity. Consequently, relatively open immigration policies came under attack. In Congress, a House caucus devoted to immigration restriction doubled in membership after September 11. Representative James Traficant, Democrat of Ohio, spoke for many of those members when he asked, "How do you defend your home if your front and back doors are unlocked? What do we stand for if we can't secure our borders? How many more Americans will die?... If 300,000 illegal immigrants can gain access to America every year, trying to find a better life, do not doubt for one moment that a larger contingent of people with evil intentions could gain entry into America and continue to kill American citizens."
Thankfully, such sentiments have not gained much headway in the ensuing months. Although the Bush Administration has backed off its proposal for granting amnesty to illegal immigrants from Mexico, it has shown few signs of embracing significant immigration restrictions in response to September 11 and has even agreed to restore food-stamp eligibility to legal immigrants. In Congress, immigration opponents have failed even to gain a formal hearing for their proposals. Yet the popularity of The Death of the West shows that nativist attitudes have not disappeared, and Buchanan's diatribe will undoubtedly help reinforce such views. Furthermore, both opponents and supporters of open immigration recognize that another incident of terrorism is perhaps all that is needed to turn The Death of the West from polemic to policy.
Facebook Like Box