Which Path of the Law?

-- By JocelynGreer - 8 April 2013

Introduction

When I think about what kind of lawyer I want to be, the decision to dedicate my career to fighting injustice is easy. But the choices of what causes to fight for, in what order and with whom are much more challenging. The dilemma I faced in supporting the ongoing marriage cases is a prime example of my confusion. Competing in the Frederick Douglass Moot Court competition earlier this year, I was posed with the question – albeit in a fictitious context – of what consequences would result from federal recognition of same-sex marriages. As a liberal lesbian representing a persecuted gay man who had been denied the right to file for a legal separation and to receive basic federal benefits, it might seem like my answer would be clear. However through my research, heated debates with queer friends, and my own personal experience, I have become very suspect of the same-sex marriage initiative.

The Issues Behind the Issue

It’s not that I oppose granting gays and lesbians the right to marry, but more so that I take issue with the people in the movement themselves and the message it sends. Although it bills itself as an LGBT advocacy group, the Human Rights Campaign (whose logo has been borrowed by thousands of Facebook users to show their support for marriage equality) has been all too ready to disassociate with transgender causes when convenient. The HRC and those who show passion for LGBT equality solely within the marriage issue have also been cruelly disinterested in the glaring problem of LGBT youth homelessness. The elitism of marriage equality is perhaps best exemplified by the fact that at the center of the DOMA case is an estate worth more than $5 million. As Yasmin Nair would say, “Gay marriage IS a conservative cause.” It alarms me that we as a society are more concerned with Edith Windsor’s estate tax than with the fact that 40% of homeless kids are LGBT.

Is this a Fair Stance to Take?

I try to put a positive, more inclusive spin on the cases: Perhaps homosexuals will be declared a quasi-suspect class, and it will be harder to pass legislation that discriminates against gays in other contexts like employment, housing, and healthcare. Then, I remember that there’s also the strong chance that the Court will declare a fundamental right to marriage for all, which wouldn’t do anything for those who aren’t able to or don’t want to get married. Admittedly, as a product of one of the many American marriages that end in divorce, I’m not as concerned with the right to enjoy marriage benefits as I am with employment, housing and healthcare discrimination.

When I explained this to a biracial queer friend, she pointed to Loving v. Virginia. That case, she said, allowed her parents to get married, allotted them federal benefits that made them financially stable enough to send her to Princeton, and empowered her and her siblings with the knowledge that her family was accepted by society. “That’s great, “ I found myself snapping back. “If you believe in the values of marriage, your parents’ marriage happens to be one that doesn’t end in divorce, and your parents have money and property subject to taxes.” I certainly believe in the message of Loving v. Virginia, and am happy that it came in time for my friend’s parents to raise a family without the state’s interference. But that case didn’t do anything to ail black poverty or incarceration rates.

Nothing that happens can pass the test of being also everything else. So what?

The import of same-sex marriage to society is even more frustrating to me when I remember that the other premiere LGBT issue of our time is Don’t Ask Don’t Tell. The most pressing concerns that exist in the LGBT community are not disproportionate homelessness, employment discrimination or anything concerning transgender people, but warfare and federal benefits.

While my friends find it irritating, I find it concerning that I’m now arguing against the ideas that once stood at the core of my being. Although I think there are more worrisome violations of rights than marriage inequality, I don’t want to stand in the way of same-sex couples gaining equal rights either. Still though, I can’t escape feeling that I don’t want this marriage case – and the principle of “just us” that it stands for – to succeed. When I consider my future and whether or not I would choose to align with the HRC and help litigate the marriage cases if I had the opportunity, I have to ask myself whether or not it would be worth an ends that I believe in to concede that equal protection is first and foremost afforded to the rich and popular. By the same token, I also wonder if it would be wrong of me not to take every opportunity to fight against injustice.

Conclusion

I have ultimately realized that I might have to go off the beaten “civil rights” path when deciding what laws I want to challenge. And the causes I pick may not be worthy of a profile picture trend, but I could possibly help people who would otherwise be forgotten. My friend is right in the sense that cases like Loving v. Virginia and Windsor stand for something: They serve as important reminders that lawyers truly do have the capability to put an end to injustices. I’m inspired by them to change policies of public housing discrimination to try to put a dent in the LGBT homelessness figure.

I don't understand the argument. It appears that you think this is an issue primarily of interest to gay people who aren't you. That sounds right. My mother and her partner, who do have real estate and pay taxes and so on, probably won't get married either.

I didn't have the impression that we were doing this because we thought getting married was very important for all gay people. I don't want to be married either, so I would hardly wish it on my gay friends. My impression was that we were doing this because it represented fundamental justice for people who did want to get married, unlike you and I. And you haven't begun to explain why you think achieving that fundamental justice isn't important.

So we are left with the point that you want to work on problems that matter to you. This is a good resolution to come to, but I don't think it supports the weight of the essay.

What alternative form of human sacrifice is available that you propose they switch to?

Wouldn't it make sense to talk about the real world, instead of a television drama?

Not only does it raise obvious constitutional concerns, it has been proven not to deter crime.

At a minimum, you needed a cite here to provide some evidence. You can't pass this off by mere assertion. And so far as the social science goes, I don't think you can prove your point of view to even the most fairminded proponent of capital punishment: evidence on "the deterrent effect" of capital punishment is intrinsically equivocal.

When asked to explain its legitimacy in light of the facts, the Governor states, "These days murders are random – senseless – maybe the punishment should be too." This reasoning quite literally puts our criminal justice system on the same plane as criminal activity.

And no real official in real life would offer it as a real justification. You're just fooling with a straw man, not meeting real arguments with real objections.

Since governments find both criminal thought and conduct so objectionable that it mandates punishment, the notion that our sentencing should behave with the same mens rea and actus reus is clearly nonsensical.

What does this mean?

The reasoning behind the death penalty on Oz is not that far off from the reality: In Kennedy v. Louisiana, the Supreme Court affirmed that, "' the Eighth Amendment's protection against excessive or cruel and unusual punishments flows from the basic ‘precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.'"

How are the two statements related? This makes no sense to me.

Why? I don't understand this comment. Justice Kennedy is making a point that opponents of capital punishment need in order to prevail. Because capital punishment was unquestionably regarded as neither cruel nor unusual within the meaning of the Eighth Amendment in 1791, unless those words establish an "evolving standard of decency," as the Court said in Furman, the Amendment provides no support to opponents of execution. Justice Kennedy is stating, for the Court, the crucial principle that the Eighth Amendment's standard of proportionality evolves. Why would you object to that?

While the statistics speak to a majority of Americans favoring the death penalty, Justice Kennedy himself seems to note that this is as much a primitive view as it is a popular one. "The Amendment ‘draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.' This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.'" Kennedy's conclusion implies that we can expect the public opinion of the death penalty to change as our society matures and becomes more moral, but for now we have to enforce un-evolved standards of decency. This leaves me wondering, "Why can't we just fast forward to the ideal rule?"

That's neither what he says nor what he means. He do you conclude that from the text of the opinion?

Could we please stop using bullshit invented to sell soap on television as a substitute for reality? Are we seriously entertaining decisions about social policy questions based primarily on pulp fiction?

But that's not an argument addressed to proponents of the death penalty who don't believe in rehabilitation, particularly not for the types of murderers sentenced to death. It's not even convincing to me, despite my opposition to capital punishment and my belief in rehabilitation. To anyone who actually believes in the social utility or deontological morality of serious retributive punishment for, e,g. cop-killing or torture-murdering, your argument would be ludicrous.

We need to lose both the TV references, which don't substitute for real-world evidence and illustrations, and the Felix Cohen references, which are completely irrelevant to the position being advanced. You haven't shown any transcendental nonsense, so far, in the arguments for the death penalty, and you are unlikely to, because most of the arguments in its favor are not law-centric at all. Nor have you shown a functional approach to arguing against the death penalty, because you haven't addressed the function of the death penalty at all, except to deny that its function is deterrent, on an evidentiary basis you don't disclose. But unless you think the only cultural function of the death penalty is deterrence (which would be a strangely truncated view of your opponents' positions), even that imperious declaration didn't even get you started.

Using the Functional Approach to Overturn "Transcendental Nonsense" in Arguments for the Death Penalty

-- By JocelynGreer - 26 Feb 2013

Introduction

Felix Cohen tells us that judicial opinions consist mostly of “transcendental nonsense,” saying of recent appellate court decisions, “…the question has become, for us, a symbol of an age in which thought without roots in reality was an object of high esteem” (pg. 811). Working from this premise, figuring out how to create new legal ideas to argue against court-sanctioned deprivations of individual rights – something I would like to do one day – is a daunting task. To me, it seems that the first step is to look between the lines of the flawed framework and see what is actually influencing judges to rule the way they do. The legitimacy of the death penalty is an ideal case study, because of the obvious flaws I see in the arguments of its proponents. Based on Oliver Holmes’ and Cohen’s characterizations of judicial review, once I discover what is actually driving the rule, I think an effective tool of persuasion would be illustrating that the alternative achieves the same ends.

"Transcendental Nonsense" in Arguments for the Death Penalty

Mens Rea in Murders and Capital Punishment

The death penalty and the justifications for it in the nameless, fictional state in the show Oz is a paradigm for similar policies across the country. Not only does it raise obvious constitutional concerns, it has been proven not to deter crime. When asked to explain its legitimacy in light of the facts, the Governor states, “These days murders are random – senseless – maybe the punishment should be too.” This reasoning quite literally puts our criminal justice system on the same plane as criminal activity. Since governments find both criminal thought and conduct so objectionable that it mandates punishment, the notion that our sentencing should behave with the same mens rea and actus reus is clearly nonsensical. The reasoning behind the death penalty on Oz is not that far off from the reality: In Kennedy v. Louisiana, the Supreme Court affirmed that, “’ the Eighth Amendment's protection against excessive or cruel and unusual punishments flows from the basic ‘precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.'”

Other "Transcendental Nonsense" in the Death Penalty

Furthermore, any hope for a logical rule to apply is lost when Justice Kennedy continues, “Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that ‘currently prevail.’” While the statistics speak to a majority of Americans favoring the death penalty, Justice Kennedy himself seems to note that this is as much a primitive view as it is a popular one. “The Amendment ‘draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.’ This is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.’” Kennedy’s conclusion implies that we can expect the public opinion of the death penalty to change as our society matures and becomes more moral, but for now we have to enforce un-evolved standards of decency. This leaves me wondering, “Why can’t we just fast forward to the ideal rule?”

Applying the Functional Approach to the Death Penalty

Functional Reasons behind the Death Penalty

As it relates to the psychological welfare of our citizens, I do think there is a functional argument in favor of the death penalty underneath all the transcendental nonsense. I first found it when viewing the story of Richard L’Italien, an inmate on death row on Oz. In the entire six season-series, only about ten minutes are devoted to L’Italien’s character, but those ten minutes are enough to depict him as heartless and completely unsympathetic. When he is told by the warden he is going to be executed the following day, he callously responds, “Tomorrow? Well, my schedule’s clear. OK.” Before the warden walks away, L’Italien admits to the rape and murder he was charged with. And then, in the same taunting tone, he admits to raping and murdering 39 other women. As I listened to him speak about his crimes with absolutely no remorse, I realized that what scared me about L’Italien was how inhumane he was: It was as if he was not vulnerable to the same human emotions I was. When he gets on the table where he will receive his lethal injection, he quivers like anyone in that position would and proclaims, “I’m really not ready for this.” It was at that moment that I felt he was just a man like any other person, and was subject to the same state-imposed restraints on his behavior. In a sense, this seems to be the same reassurance that truly drives judicial decisions in favor of the death penalty: If you take away someone’s life and liberty, rest assured, the state will do the same to you.

The Functional Approach to Arguing Against the Death Penalty

Now I reach the question of how to refute the positive effect of reassurance that results from the death penalty. As I personally understand that feeling, it can be rebutted by a showing that rehabilitating criminals can make us feel that they are just as human as we are. Society already links rehabilitation to the cause of human rights, but this context elevates criminals to the status of other citizens. The death penalty demotes them to the status of a regular person from the notion that they are “monsters” that are somehow above the law. Since we are – or should be – past any primitive conception that murderers somehow have a different biological nature than us, I would try to persuade courts to focus on the nurture that caused their inhumane character. That is what can actually be ailed and what truly differentiates them from the rest of society. From that standpoint, rehabilitation – complete with giving criminals the same basic resources (i.e. education and emotional support) that standard non-murderers have – would seem a much more obvious and "mature" alternative to the death penalty.

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