Last Friday, the New York Times ran an article documenting a shift in American attitudes toward drug addiction:
“When the nation’s long-running war against drugs was defined by the crack epidemic and based in poor, predominantly black urban areas, the public response was defined by zero tolerance and stiff prison sentences. But today’s heroin crisis is different. While heroin use has climbed among all demographic groups, it has skyrocketed among whites; nearly 90 percent of those who tried heroin for the first time in the last decade were white.”
Unlike the urban African-American drug addicts of decades past, today’s white drug addicts evoke “care and empathy,” the Times said.
Right on cue – the very same day the Times article ran – the Huffington Post picked up a video clip of New Jersey Governor and Republican presidential candidate Chris Christie speaking passionately and personally about drug addiction during a campaign appearance in New Hampshire.
New Hampshire – a state not marked by urban concentrations of African-Americans – has of late suffered from something of an epidemic of heroin addiction, and the problem got plenty of attention before Christie’s talk on Friday.
Christie spoke of his mother’s nicotine addiction. I’ve seen enough nicotine addiction in my life to know that it is a powerful addiction, very hard to kick, and that the urge remains strong pretty much throughout the life of an ex-smoker. Still, the example seemed a little odd – Christie said his mother began smoking at the age of 16 and was diagnosed with lung cancer at 71. Smoking no doubt impaired her health and functioning for the half-century leading up to her diagnosis, but she still lived a productive life.
Christie’s second example was closer to the mark. He told a story about a hugely successful law school friend who, in his early 40s, became addicted to a prescription painkiller, Percocet. Christie assessed his friend’s success by his good looks, the good looks of his wife and three daughters, his education, his income, his career, his house, and his physical fitness.
All of that success was lost to Percocet, and after ten years of addiction, Christie’s friend died alone in a hotel room next to empty bottles of pills and vodka. There but for the grace of God, Christie said, went he.
The human species evolved to be compassionate. In the course of normal psychological development, our capacity for empathy fully forms by the age of 20. But sometimes we stubbornly resist compassion. And sometimes after long resistance, our empathy turns on as if someone flipped a switch.
Ronald Reagan’s AIDS policy turned on a dime after his friend, Rock Hudson, died from the disease. Many a public figure, from Dick Cheney to Rob Portman, came to favor same-sex marriage only after a close family member came out.
The human species evolved to be compassionate, but we also evolved to be tribal. We empathize much more readily with people we regard as being similar to ourselves; thus our tribalism impedes our compassion. When heroin addiction was perceived as a problem of urban African-Americans, the response of our white-normative political culture was to blame the addict for “bad choices” and to throw the addict in jail.
But now we see good people, our people, becoming heroin addicts, and our empathy switches on like a light bulb.
It’s hard to regard it as a bad thing that Dick Cheney favors same-sex marriage, or that Ronald Reagan did finally come around to regard the AIDS epidemic as worthy of federal response. It’s hard to argue that Chris Christie’s advocacy for treatment instead of incarceration for addicts is a bad thing.
Still, the duality of our capacity for compassion is discouraging. Humans evolved to be both tribal and compassionate, and those two traits can be at odds. But humans also evolved to have reason – unique among the species, we are capable of thinking about our own thinking, of critiquing our thinking, and of changing it. Maybe it’s idealistic to hope that the electoral process would be one of those places where reason would be at a premium.
It remains to be seen whether our new-found compassion for our drug addicts will be generalized to those other drug addicts. If so, then this is an important moment in our socio-political history. If so, we can only mourn the unnecessary loss of so many drug addicts who went before this moment. We can only mourn our own need to lose a close friend to drug addiction in order to see the addict as a victim in need of help instead of a criminal in need of punishment.
Don’t get me wrong – I like Bernie Sanders, a lot. Where he and Hillary Clinton disagree, I’m more likely to agree with him than her. I just don’t think American will elect someone who calls himself a socialist, even if he’s not really a socialist. (Sanders is a social democrat, not a socialist – but that’s a subject for a different post.)
I personally don’t think Donald Trump will, or even wants to, win the Republican nomination. But the mere possibility that Trump might win the nomination, combined with the unelectability of Sanders, if he were to be the Democratic nominee, threatens us with Donald Trump as the president of the United States, commander-in-chief, finger-on-the-nuclear-button and all.
Given the stakes, and the contemporary partisan divide, it’s much more important to elect the Democratic nominee than to nominate the perfect Democratic candidate.
So Clinton’s top-notch performance before the House select committee on Benghazi, on the heels of her top-notch performance in the first Democratic candidates’ debate, was a huge relief. In an odd way, it was also a big relief when Carson overtook Trump in national polling this week.
Carson is just a soft-spoken version of The Donald: Obamacare is slavery, gun control is for Nazis, people decide to become gay in prison. So on the face of it, Carson leading the Republican candidates is not really an improvement over Trump leading the Republican candidates.
But here’s the thing: Carson overtaking Trump shows that Republican primary voters have not settled on a candidate. Fully 80 percent of Carson supporters told pollsters that they aren’t sure they will end up voting for Carson – so there is plenty of opportunity for Carson to follow Trump out of contention. Americans have never elected a president with utterly no government experience, and Republicans have never nominated a candidate from the full-out loony right.
The betting markets give Marco Rubio a large lead in the Republican race, and the betting markets have a better record than early polling. A President Rubio would be no gift to American history, but his downside is a whole lot shallower than the downside of either a President Trump or a President Carson.
And Jeb Bush might yet make a come-back.
Since September 11, 2001, mass-murderers with legal assault weapons have killed more Americans than have been killed by Islamic terrorists. We have spent trillions fighting Islamic terrorists but we can’t bring ourselves to ban assault weapons or limit the size of magazines that feed bullets to those weapons.
The American Right is willing to defund one of our most important health care providers for the poor, Planned Parenthood, because that organization performs abortions, but is unwilling to take any significant action at all to control access to assault weapons. There is no measure too extreme in the Right’s crusade against a woman’s constitutional right to an abortion, but there is no measure acceptable to the Right to protect against the proliferation of military weaponry. The Right pleads the Second Amendment in defense of its paralysis on guns, but is utterly unphased by the Fourteenth Amendment source of the right to abortion.
Today another nutcase on another campus in another state took at least 10 lives with a weapon that would not be available to civilians in a rational society. But when it comes to firearms, we are not a rational society.
Ten dead in Oregon.
Ten dead in Oregon.
How many more?
In the course of investigating a credit card fraud ring, New York City Police Officer James Frascatore came across retired tennis star James Blake standing quietly outside his hotel. Mr. Blake bore a reasonable resemblance to a suspect in the case, so Officer Frascatore approached him and arrested him, then determined that Blake was not the suspect sought and released him.
Good police work? Hardly.
Frascatore’s arrest of Blake, which was recorded by surveillance video, was accomplished by flying tackle.
Consistent with the video, Blake maintains that the officer did not announce himself, and did not say that he was arresting Blake – he bodily forced Blake to the ground and handcuffed him. Blake offered utterly no visible resistance, which, under the circumstances, is by itself quite remarkable.
In handcuffs, Blake was led off-screen to a group of officers. He says that his pockets were checked and his credit cards examined, leading Blake to worry that he was the victim of an identity theft scam. Officers maintained that Blake was in handcuffs for less than a minute; Blake says it was more like 10 or 15 minutes. Apparently a retired cop recognized Blake, verifying his identity and leading to his release.
Neither Officer Frascatore nor any of the other officers present filed the reports that are required by NYPD procedure when an arrest is made and then voided. And make no mistake – placing a citizen in handcuffs, however briefly, is an arrest. Absent the required reports, Police Commissioner William Bratton learned of the incident from news reports initiated by Mr. Blake.
The video quickly came to public light, and Commissioner Bratton apologized to Mr. Blake, as did Mayor Bill de Blasio. Both agreed to meet with Mr. Blake to hear out his demand that Officer Frascatore be fired as unsuitable to police work, and his ideas for police reform, such as expansion of the use of body cameras by officers. Mayor de Blasio described Mr. Blake’s handling of the incident as “selfless.”
Mr. Blake himself, while calling for Officer Frascatore’s job, has been careful to praise the good work of the vast majority of police officers: “I do think most cops are doing a great job keeping us safe, but when you police with reckless abandon, you need to be held accountable.”
This is a variation on what I call the Few Bad Apples line of police critique. It has become mandatory for liberals to adopt the Few Bad Apples line, enabling them to criticize police practices without taking the politically unpopular position of condemning police officers generally. The notion is that police officers are in the main honest and diligent public servants who work hard to apply the law fairly and without bias, but that in any group there are a few outliers, and that if we can root out those few problem cases, all will be well.
My problem with this line is that it is a total fiction.
The fabric of the Blake case contains the thread of the fuller story – the seven officers who witnessed Officer Frascatore’s unaccountably violent arrest of a man he suspected of a non-violent crime joined Officer Frascatore in failing to perform their duty to report the incident.
For many years, I served as a judge of an administrative tribunal that adjudicated charges of police officer misconduct. What I learned from that experience is that, while police officers will vary in their propensity to certain kinds of misconduct, officers vary virtually not at all in their willingness to cover up the misconduct of their fellow officers. In scores of trials of charges of police misconduct, I never saw even one instance of a police officer testifying to misconduct by a fellow officer.
Most commonly, where an officer was charged with improper or excessive use of force, the officer and his colleagues would simply deny that force had occurred. In one case, for example, a woman said that an officer had punched her in the mouth, and the prosecutor presented a photograph of her swollen face. When a colleague of the accused testified, the prosecutor showed him the photograph and asked him if it showed any injury – the witness replied that the photograph just showed that the woman had “a big set of lips.”
New York police officers usually work in pairs, so most incidents with an officer will have at least one NYPD witness. In a remarkable number of use-of-force cases, the partner of the accused just happened to be distracted at the critical moment. The partner would testify about what happened right up to the critical second, then would contend that some noise or motion elsewhere on the scene caused the witness to “avert my eyes,” depriving the partner of the ability to enlighten the proceedings further.
After many years and many cases, I came to the realization that police officers widely believe that civilians will never understand the need for them to use force in certain circumstances; therefore, they conclude, it is better to deny that force occurred than to admit it and explain why it may have been justified. I tried a number of cases in which it was clear to me that force would have been justified – by an arrestee’s resistance, for instance – but the officers insisted that force had not been used. This is a complex failure, one for which civic and political leaders, and judges and juries, must accept a share of blame.
This failure is even more obvious in the area of searches for evidence. The Supreme Court has insisted on developing a Fourth Amendment jurisprudence that is almost devoid of clear, bright, black-and-white rules. Instead, the legality of a search typically depends heavily on its specific factual circumstances. It has often been observed that these Fourth Amendment questions are deeply divisive and difficult – the justices themselves decide cases only after two levels of federal adjudication, with the benefit of briefing by the country’s ablest lawyers, aided by batteries of Ivy League law clerks, and after weeks and sometimes months of deliberation – and still the justices often decides these questions by a single vote. Yet police officers are expected to decide the same questions on the street, in situations that demand nearly instantaneous reaction, where a wrong decision can pose a serious risk of injury or worse to the officer.
The professor who taught my criminal law course said that the Court’s Fourth Amendment decisions don’t teach officers how to act, they teach them how to testify. Officers have no confidence that the judicial or civilian world will genuinely understand the world of street-level law enforcement, so they give accounts of events that are fictionalized to accommodate what they perceive to be the requirements of judicial and civilian norms.
The culture of covering up one’s own and one’s fellow officers’ wrong-doing is so well established that it has a term: testilying. Testilying is a routine re-arrangement of facts under oath. The re-arrangement of facts in any given case does not require a specific conspiracy – it is not necessary for officers to get together and decide on a cover story. Testilying reflects that officers know without having to ask what they are expected to say. The practice so wide spread that it has a Wikipedia entry. The practice has been around for decades, if not centuries, but the scope of the practice has only become clear to the larger world in the modern age of nearly pervasive surveillance and cell phone video.
There was once a police officer who tried to change police culture, and who testified to the pervasive wrong-doing that culture fostered. Frank Serpico paid for that effort almost with his life, and spent ten years in exile in Switzerland and the Netherlands to escape further danger.
It is hard to argue with James Blake’s position that Officer Frascatore should be fired. It appears that Frascatore is too aggressive, too quick to resort to force, to serve as a police officer vested with the legal authority to use force against civilians. But firing Officer Frascatore will not begin to address the problems of policing. As long as police officers hold a higher loyalty to each other than to the law they are sworn to enforce and to the civilians they are sworn to protect, other officers inclined like Officer Frascatore will find safe refuge in police departments across the country.
Rowan County, Kentucky, has a population of just over 23,000, according to the 2010 census. Therefore, according to Kentucky law, the county clerk of Rowan County, with credit for years served as deputy county clerk, earns a salary of $87,997.
Jean Bailey served as Rowan County clerk from 1978 to 2015, and for 26 years she employed her daughter, Kim Davis, in the clerk’s office. When Ms. Bailey decided to retire, her daughter ran to succeed her. Ms. Davis had an exceptionally tight Democratic primary race, but she won by a 23-vote margin. She had only a slightly easier time in the general election, beating her Republican rival by 6.3 percent of the vote.
It is at least an interesting side note that one of the duties of a county clerk in Kentucky is to chair the county board of elections. The county clerk is also responsible for receiving “applications” for voter registration and entering them into the state’s database. County clerks are explicitly permitted to exercise their electoral responsibilities for elections in which they are candidates, and therefore presumably also for elections in which their daughters are candidates.
So Ms. Bailey employed her daughter as a deputy county clerk, then presided over the board of elections while her daughter ran to replace her. In a government that places any importance on ethics, both would be impermissible conflicts of interest.
During her election campaign, Ms. Davis told the Moreland News, “The public is my boss. As a deputy clerk …, being a public servant is ingrained in me and I want continue providing the high level of customer service we do while treating people with respect, kindness, and helping them with whatever situation they have.” Bookmark that phrase: “treating people with respect, kindness, and helping them with whatever situation they have.”
After Ms. Davis won the election, she told the News, “My words can never express the appreciation but I promise to each and every one that I will be the very best working clerk that I can be and will be a good steward of their tax dollars and follow the statutes of this office to the letter.” Bookmark that phrase, too: “follow the statutes of this office to the letter.”
Ms. Davis took office on Monday, January 5, 2015. On June 26, 2015, the United States Supreme Court held that same-sex couples are constitutionally entitled to marriage licenses issued by the states. One of the duties of a county clerk in Kentucky is to issue marriage licenses.
Rather than comply with the Supreme Court decision, Ms. Davis stopped issuing all marriage licenses – the only Kentucky county clerk to do so. A federal judge ordered her to resume issuing marriage licenses, and an appellate court declined to intervene. Yesterday, the Supreme Court also declined to intervene, but today Ms. Davis continued to refuse to issue any marriage licenses.
Initially this morning, Ms. Davis left it to her staff to turn away same-sex couples seeking marriage licenses – she sat in her office with the blinds drawn. Eventually she came of out of her office and asked the couples to leave. Someone said that he would not leave until he got his marriage license. “Then you’re going to have a long day,” Ms. Davis retorted. That is evidently what passes for “treating people with respect, kindness, and helping them with whatever situation they have” in Ms. Davis’s world.
Someone asked Ms. Davis under whose authority she was denying them marriage licenses. She responded, “Under God’s authority.”
The couples suing Ms. Davis immediately asked the federal court to find Ms. Davis in contempt of court, and a hearing on the motion was scheduled for Thursday.
Ms. Davis issued a statement this morning, saying in part, “I was elected by the people to serve as the County Clerk. I intend to continue to serve the people of Rowan County, but I cannot violate my conscience.” Evidently that is what passes for “follow the statutes of this office to the letter” in Ms. Davis’s world.
According to Ms. Davis’s attorneys, the act her conscience cannot abide is the placement of her name on a license for the marriage of two members of the same sex. A county clerk is also responsible, for instance, to record deeds for property – we don’t yet know whether Ms. Davis’s conscience can abide recording the deed for a house to be occupied by a same-sex couple. A county clerk is responsible for printing election ballots – we don’t yet know whether Ms. Davis’s conscience can abide printing a ballot with, say, the name of a candidate who is married to a person of the same sex.
For each of six government jobs I have held, I was required to swear an oath to abide by the constitution of the United States. The oath provides no exceptions for religion or conscience. Ms. Davis swore a similar oath, and her oath included no exception for constitutional provisions she dislikes.
The point, of course, is that public officials are required to comply with the laws of the United States, and if they think the laws of God prohibit them from complying with the laws of the United States, they may resign and find other employment. There is no religious exception for the execution of public duties by a public servant, and there never has been.
Ms. Davis has failed to find a judge to say otherwise, even though she has gone up to the Supreme Court and back in the effort.
Vice President Joe Biden is thinking about running for president. Speaking purely statistically, it’s a long shot.
We’ve had 47 vice presidents, and, although the truism is that the vice president sits only a heartbeat from the presidency, only 14 of 47 have become president. Nine of those succeeded upon the death or resignation of the president, and of those nine, five were tossed out at the next election.
Only five vice presidents have succeeded to the presidency by election. Two of them don’t really count – John Adams and Thomas Jefferson – because they were elected vice president under the original constitutional scheme that made the presidential runner-up the vice president. One, Richard Nixon, didn’t succeed directly to the presidency, but only won election eight years after leaving office.
In other words, only two vice presidents have ever succeeded directly to the presidency by popular election – Martin Van Buren and George H. W. Bush. Neither, by the way, won a second term. Only one vice president in the history of the Republic has ever served two full terms as president – Thomas Jefferson.
One of the reasons that vice presidents have more trouble with the presidency than it seems like they should is that it’s very hard for one party to win three consecutive terms in the White House, whether their candidate is the sitting vice president or not. Just ask Al Gore.
Another reason is that vice presidents are selected very differently than presidents. Presidents withstand rigorous primary campaigns, and are the focus of voters’ choice on election day. Vice presidents are hand-picked by presidential nominees, subject only to relatively loose scrutiny by party conventions and general election voters. A successful vice presidential candidate is a national figure, but doesn’t necessary have wide national appeal – he may just fill a gap in the presidential candidate’s popular appeal.
When Barack Obama won the primaries, he relied heavily on African-American, Latino, Asian-American, and liberal white voters. Joe Biden gave Obama credibility in the white working class, and Biden has continued to serve that function throughout the Obama presidency. To win the nomination, let alone the presidency, Biden has to considerably broaden his appeal.
But I don’t agree with the pundits who say it’s too late for Biden to enter the race. This morning the talking heads on MSNBC were wringing their hands about how Biden wouldn’t be able to make the requisite “splash” if he entered the race. Au contraire. Biden’s entry into the Democratic primary campaign would be its own splash.
A Hillary Clinton-Bernie Sanders-Joe Biden three-way would be a lot of fun to watch. And at an average age over 70, they would surely make the oddest competition in history for the youth vote that energized the Obama campaign in 2008.