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The Supreme Court, in the final week of June, handed down three decisions, each of which seems to endorse a valuable social principle.
In the first, involving the right of legal immigrants who have pleaded guilty to crimes in the past to a judicial review of deportation proceedings, the Court upheld the principle that no matter who you are, you are entitled to your day in court.
In the second case, the High Court affirmed the right of writers and artists to share in the wealth made possible by the new media. The case was brought by a group of freelancers who objected to the inclusion of their work in electronic databases without permission or remuneration; the group was led by Jonathan Tasini, the president of the National Writers Union and a man with an admirable mission.
In the third case, the Supreme Court made it more possible for Congress to provide correctives to the influence of money in politics by upholding Watergate-era limits on how much political parties can spend in coordination with candidates for federal office. Had the Court eliminated the restrictions, it would have legitimized the parties as cash-laundering machines for donors.
Left to be determined, in all three cases, are the appropriate remedies for the ills the rulings addressed, and the difficulty of fashioning these should not be underestimated. But it is heartening to see the Court acting in its proper role as the guardian of both the individual and society.
The state's justice system crushes poor people like Ernestina Rodriguez.
Click here to review some of the more perceptive comments on the Scalia Five's judicial coup d'etat.
To write a letter on behalf of Juan Raul Garza, as well as the other prisoners currently
on state and federal death row, visit our Death Row Roll Call.
Strange as it may seem, Timothy McVeigh and George W. Bush shared the same analysis of McVeigh's execution Monday morning, June 11, in Terre Haute. The Oklahoma City bomber, intoned Bush, "met the fate he chose for himself six years ago"--the perfect mirror of McVeigh's own vision of himself as "the master of my fate," in his citation of William Ernest Henley's "Invictus."
The notion of "fate"--a predetermined outcome--sanitizes state-sponsored killing even as it fulfills McVeigh's megalomaniacal delusions. But fate had nothing to do with it. Death sentences are a matter of caprice rather than legal predetermination, as evinced by the twenty-one of twenty-three federal death-row inmates remaining in Terre Haute whose "fate" was to be born nonwhite. Myth: "The severest sentence for the gravest of crimes," as Bush declared that Monday, employing McVeigh as a handy fig leaf for a federal death row even more racially out of kilter than its state counterparts. Reality: The capital trial norm remains "the death penalty not for the worst crime, but the worst lawyer," in the words of litigator Stephen Bright.
One salient political and legal fact received scant consideration Monday: Because it was a federal execution, McVeigh's killing was the first in two generations on behalf of all of us. But "all of us," or even the majority of us, no longer support the death penalty. The government has gone back into the killing business at the very moment when the national capital punishment consensus has eroded, as indicated by polls showing support for death sentences slipping below 50 percent if replaced by life terms without parole. McVeigh's execution was supposed to turn this trend around. Instead, the FBI's documents blunder and the generally sordid spectacle from Terre Haute only fed public unease.
Sanitizing was pretty much the universal order of business Monday. The news media made much of their sensitivity to Oklahoma City's survivors. But only the Daily Oklahoman consistently noted the diversity of survivor opinion on McVeigh's execution, and among broadcasters only KWTW, an Oklahoma City station, reported that nearly a third of the 325 people who had reserved chairs for the closed-circuit telecast elected not to show up. And only the Chicago Tribune has bothered to report--in an interview with an anesthesiologist shortly before McVeigh's original execution date in May--that lethal injection deaths like McVeigh's are often far more painful than they may appear to witnesses. The closed-circuit telecast of McVeigh's killing also offered powerful ammunition against the argument from some leading abolitionists that public broadcasts of executions would lead to widespread outrage against them. "It was such a peaceful death. That made it more palatable," witness Archie Blanchard said on NBC, after confessing that before the telecast it had been "hard to think about being there."
Also missing from press coverage was any recognition of McVeigh's forgotten conspirators. Not John Doe #2, but the wide range of "mainstream" right-wing politicians and broadcasters and publishers and gun lobbyists who exploited the Branch Davidian deaths in Waco with wild conspiracy theories, ratifying McVeigh's delusional rage and naming his enemy. Just a few of those sharing collateral guilt: the National Rifle Association, which not long before Oklahoma City called the Bureau of Alcohol, Tobacco and Firearms "jack-booted government thugs, federal agents wearing Nazi bucket helmets and black storm trooper uniforms to attack law-abiding citizens"; Representative Helen Chenoweth, who declared that America's national parks had been taken over by the United Nations; Senator Bob Smith, who temporarily dropped his GOP affiliation in favor of the paranoid, antigovernment populists of the US Taxpayers Party; and antichoice fanatics who pointed the way to Oklahoma City with their abortion clinic bombings in the early nineties. It is easier to treat Tim McVeigh as an inexplicable aberration who can be evicted from history than to recall just how widely evident were obsessions like his.
President Bush and Attorney General Ashcroft now turn their attention to Juan Raul Garza, scheduled for execution on June 19. In between, Bush traveled to Europe, arriving in Spain, which was in an uproar over a falsely convicted Spanish citizen recently released from Florida's death row. America's death penalty has for years baffled our European partners, but it is only now becoming a serious diplomatic and political issue. France is refusing to extradite Buffalo abortion doctor shooter James Kopp until prosecutors agree to spare him from capital charges, and Germany is suing the United States over the execution of a German national who was never informed of his consular rights. In Ireland, voters on June 7 overwhelmingly approved a referendum permanently abolishing capital punishment from the country's Constitution. Capital punishment now isolates the US abroad as it divides Americans at home. The McVeigh execution, instead of marking a new era of federalized capital punishment, may turn out to be the high-water mark before the long-overdue retreat of the capital punishment tide.
Now that Timothy McVeigh has been executed, I suppose we're all supposed to stop talking about it--to "enjoy closure," a bit like the election.
But McVeigh's execution was troubling on so many levels, it's hard to know where to begin. It was alarming to watch the procedural impatience, the official "just get it over with" mentality, despite defense lawyers' not having had a chance to go through more than 4,000 pages of FBI documents that no one disputes ought to have been turned over before McVeigh's trial.
It was distressing to hear the semantic shiftiness of our President as he described the event. To us individualists at home, he said that it was McVeigh who "chose" this method of reckoning; to a European audience it was "the will of the people in the United States." Like some libertarian Pontius Pilate, Bush washed his hands of any responsibility, skillfully uncoupling the role of the executive from execution. It's bad enough to have a death penalty; it is positively chilling when the chief poohbah shrugs it off as though helpless, assigning federally engineered death to forces beyond him.
It was incredible to see anti-death penalty commentators apologizing constantly, always having to blither "of course no one condones his actions"--as though arguing for life imprisonment made one the squishiest, most bleeding-heart of moral equivocators. As a New York Times commentary observed, "Experts said it was the wrong case to debate--many people who do not approve of the death penalty wanted Mr. McVeigh to die."
Yet if one really wants to test the commitment of a civilization to its expressed principles of justice, the McVeigh case is exactly the right case to debate. There was little question as to his guilt (even if the question of conspiracy remains an open one in some quarters), his crime was inexpressibly reprehensible and he maintained a demeanor of controlled, remorseless calculation to the end. In other words, it is precisely the dimension of his evil that presses us to consider most seriously the limits of state force. The question is whether we want to license our government to kill, rather than just restrain by imprisoning, the very worst among us.
Much recent debate about capital punishment has focused on probabilities: the repeated demonstration that "beyond a reasonable doubt" is a matter of considerable uncertainty and outright error. I have recommended before Actual Innocence by Jim Dwyer, Barry Scheck and Peter Neufeld, and I do so here again. These lawyers' work with the Innocence Project has led to dozens of releases from death row and to calls for moratoriums in states where pro-death penalty sentiment once ran high.
There is also the question of disparate impact, particularly upon minorities and the poor. "There are no racial overtones in [McVeigh's] conviction," wrote the New York Times in an editorial. Perhaps that's true if considered in a vacuum, but certainly not with regard to its procedural legacy. If the FBI couldn't get right the most important and supposedly most careful investigation in its history--and still no stay was granted--then there is no hope in any other case. McVeigh's "nonracial" fate, moreover, will surely be invoked highhandedly in all those more routine, less highly scrutinized cases. The fact that of the remaining federal death row inmates only two are white is, according to John Ashcroft, merely "normal." For more on this aspect of the debate, I recommend reading Legal Lynching: The Death Penalty and America's Future, by the Rev. Jesse Jackson, Representative Jesse Jackson Jr. and The Nation's own Bruce Shapiro. Forthcoming from The New Press, it is an eloquent argument against the inequity of the death penalty's administration and makes a compelling case against its violent irreversibility, its unredeemable finality as pursued by prosecutors, judges and juries who are, after all, far from all-knowing or divine.
One of the saddest parts of the McVeigh saga was listening to the endlessly amplified testimonials of those survivors and family members whose sentiments were premised on vengeance being "mine" rather than the Lord's. One woman wished the electric chair had been used, because it would have been more painful. Another said, "I think bombs should be strapped on him, and then he can walk around the room forever until they went off and he wouldn't know when it would happen."
Such traumatized expectations led to predictable disappointment. "I really wanted him to say something," said one witness. "I wanted him to see me," said another. "I thought I would feel something more satisfying, but I don't," said a victim's son. "For him just to have gone asleep seems unfair." This sort of desire for "more" leaves us poised on the edge of an appetite for re-enacted violence and voyeurism. Given the horrific losses McVeigh's crime incurred, this primal hunger can be almost seductive--a howl of mourning very hard to resist, never mind debate. But it is dangerous if it allows us to lose sight of the fact that the debate we must have is, again, about the limits of state force, not about devising the perfect mirror of each victim's suffering.
But the bottomlessness of that individual trauma is not something we can afford to ignore either. For a wise and extremely moving reflection on this dimension, I recommend Susan Brison's Aftermath: Violence and the Remaking of a Self, forthcoming from Princeton. Brison, a Dartmouth College philosophy professor who was raped, strangled and left for dead, analyzes the post-traumatic stress syndrome that still colors her life and reflects on the resilience needed to carry on. "Trauma," she writes, "destroys the illusion of control over one's life. It fractures the chronology of a life's narrative--not in the way a stopped watch makes time look like it's standing still, but like the thirteenth chime of a crazy clock that throws everything that came before into question."
"9:03" reads an inscription on the Oklahoma City National Memorial. Would that we could undo that awful moment in Oklahoma City by sacrificing McVeigh's one life for all the others, but the difficult paradox of healing is having to live on and through that wilderness of grief with no illusion of control.
For more information, see our Death Row Roll Call.
For more information, see our Death Row Roll Call.
The leftists organizing in Vermont since the 1970s prepared the ground for James Jeffords's jump, and he never would have done it without them. In the 1970s and 1980s Democrats howled with fury when Vermont's Progressive Party said that no matter what the short-term consequences, the important political task was to build a radical, third-force movement in the state.
In 1988 this progressive coalition backed Bernard Sanders, then the mayor of Burlington, in a run for Vermont's single Congressional seat. Democratic liberals raised the "wrecker" charge, saying the Sanders intervention would cost the Democrats votes and put in a Republican. It did. Then, two years later, Sanders ran again against the incumbent Republican and won. Creative destruction worked.
Without decades of work by radicals, nourishing the propriety of independent politics in Vermont, would Jeffords ever have jumped the Republican ship and handed control of the Senate back to the Democrats? I don't think so.
A couple of weeks ago someone sent me an article by Todd Gitlin and Sean Wilentz, published in an obscure journal called Dissent. Since Gitlin's prime political function for years has been to fortify respectable opinion about the impropriety of independent thinking, I knew what to expect, particularly since he was in harness with Wilentz, a truly hysterical proprietarian.
Sure enough, it was an attack on those who voted for Ralph Nader, tumid with a full-inventory parade of every cliché from the past forty years about the folly of radical hopes. Want a taste?
Numbers aside, there is a deeper force at work, behind the delusion that the masses hanker for radical change that Gore would not give them--a purist approach to politics. This all-or-nothing approach, allergic to democratic contest and compromise, is rooted equally in American self-righteousness and traditional left-wing utopianism. It is as if by venting one's anger, one were free to remake the world by willing it so...
Yup, this pompous cant translates into the single, finger-wagging admonition, "You should have voted for Al Gore," the latest variant on Gitlin's one-note career sermon about voting for Hubert Humphrey in 1968. (What is it about these Humphrey lovers? Vermonter Marty Jezer, another sermonizer about main-chance political propriety, recently lashed out at CBS in his column in the Brattleboro Reformer for what he denounced as excessively hostile and prejudicial interviewing of baby-killer Bob Kerrey! The lust to be respectably "fair," whether to HHH or Kerrey, leads to some astonishingly ridiculous postures.)
In Vermont the Republican Party is pretty much dead. Jeffords should sign up right now as a member of the Progressive Party, with whose political positions he has some things in common. Of course Jeffords, at least in his latest incarnation, is truly an independent, whereas Sanders is effectively a Democrat.
Now let's see how much fortitude the Democrats on the Hill have in contesting Bush and Cheney. They no longer have the alibi of the Republicans' controlling the White House and both chambers. Footnote: The Nation's editor, Katrina vanden Heuvel, wishes it to be on record that she takes exception to the description of Dissent as "obscure." I suggest a poll of the American people.
More on the Gandoo Man
In a recent column I described how the Chicago police have declined the request of a gay Pakistani poet to hit his supposed assailant, Salman Aftab, with a hate-crimes charge. Ifti Nasim claims Aftab called him a faggot bottom and lunged at him with a knife. For some of Chicago's gays it's become a very big issue. The Chicago Anti-Bashing Network prompted the ACLU's Pamela Sumner to write a three-page letter to State's Attorney Dick Devine detailing why she felt he should pursue hate-crimes charges in Nasim's case. Devine has refused to do so.
The cops and Devine are quite right. It turns out that the initial quarrel between Nasim and Aftab wasn't about the former's sexual orientation but about an article he'd written. Aftab never attacked Nasim with a knife (though Nasim insists he'd gone to the kitchen to get one). And Nasim put up Aftab's bail money, though he still wants him hit with a hate-crimes charge for calling him an insulting sexual term. The Chicago Anti-Bashing Network supports this position, which only goes to show how dementedly wrongheaded progressives are on the hate-crimes issue.
The Bush Menu
Poor Jenna Bush's travails with the absurd liquor laws of Texas take me back to my gilded youth at Oxford, when even the appearance of sobriety, at least at Keble, was an object of scandal and reproof from the better element. As it admits elsewhere in this issue, The Nation was a tad unfair relaying the claim that the Bush White House has ordered its chef to prepare genetically modified foods on some state occasions. The source of this claim was a piece by Jennifer Berkshire posted on Alternet. The Nation earnestly commented that "the demonstration smells like a paid political announcement for the agribusiness lobby."
I remember reading Berkshire's Alternet piece as an excellent little satire, and Jennifer confirms that this was indeed the case. Satire is always an uncertain weapon. My father once wrote an update of Swift's "A Modest Proposal," this time about inoculating people with the same sort of lethal strain that wiped out rabbits with myxomatosis. When it appeared in Punch furious letters poured in, denouncing him as an advocate of mass murder. Back in my days at the Village Voice I wrote a parody of conspiracy mongering and awoke to hear it being read out as serious news on WBAI by the late Samori Marksman. Since then I've stayed with the unvarnished truth, which is usually far more incredible than anything a satirist could dream up. For evidence see Marty Jezer's onslaught on CBS, noted above.
When a renowned abortion doctor opened a clinic in Ocala, Florida, he was seen as a public pest. So local authorities used the courts to get rid of him.