Kennedy v. Louisiana: I agree.

Kennedy v. Louisiana.  This is the case that told Louisiana they could not execute a man convicted of child rape.  I have finally, and somewhat belatedly, waded through the 65 page decision and am no ready to toss my two cents on the scale.  I would have voted with the majority and prohibited the execution, but I may have given my own concurring decision.  Not that my opinion matters much, but since I get to give it for free, why not?

Let me first, though, describe my friend who while waiting for the bar results and impoverished, worked in a chicken factory in  East Texas.  I never saw the place, but she described it as thousands of chickens in all stages of hunger, drugging, narrow confinement and slaughter.  It was twenty years later and she would not eat a chicken.

I will confess that I view every new Supreme Court decision through images of thirty plus years of watching the hunger, drugging, narrow confinement and slaughter of human beings.  Not only do I lack the desire to eat them, I just don't see much point in their confinement and slaughter anymore.

So why not kill child rapists?  I don't dispute the proposition that rape can be a more depraved crime than  murder.  Rape can destroy a life just as effectively as a bullet in the brain.  Most of the sexual predators I have represented were childhood victims of rape.  It is much like those horror movies in which, once bitten by the vampire, you become one.  

Moreover, a lot of murders are not particularly depraved.  Anecdotally, at least, they make the best trustees.  The murderess who is chosen to be the nanny to the warden's children is part of prison lore.  My dear old dad requested a parolee as a care-taker and, believing the lore, asked for a murderer.  I ended up putting him in a nursing home instead, but the sentiment was there.

A lot of crimes are more depraved than murder.  Bhopal for instance.  AT&T in Chile.  IBM in Nazi Germany.  Asbestos companies.  The Pinto gas tank.  The War in Iraq.  

So, for me, the proportionality argument does fall flat.  But I have other and I think better arguments why the decision was correct.  More later.

Lynchings, Poverty and Executions

I'm only recently back from my annual pilgrimage to Gerry Spence's Thunderhead Ranch near Dubois, Wyoming.  Sara and I went for the capital punishment seminar.  Sara is returning as an intern for the Trial Lawyer College this summer.

I have attended since 2001.  The top defenders in death penalty cases come from around the country to work on their cases.  

A week of death is not exactly a cheery prospect, but the weather is cool, the surroundings are peaceful.  Because there is no internet or cell phone access, we have an enforced isolation that allows reflection.

This is a very unselfish group of lawyers.  Lawyers in other fields often hide their secrets of success.  Professional jealousy and the competition for clients may result in protecting what little is known to make sure some other lawyer doesn't get the case.  Capital punishment defense lawyers do not do this.  No one ever knows if the next case is the one that will result in the type of melancholy that ends a career.

So skills and ideas are shared freely, making it an easy field to enter.  And of course poverty and crime are a growth industry.

One interesting discussion is the relationship between slavery and the death penalty.  States with a legacy of slavery are far more likely to have the death penalty.  To the extent the lynchings were used to enforce slavery and then Jim Crow laws, those areas continue with the death penalty.  A map provided to me by my scholarly friend, Phillip Cowen, darkens the counties that had lynchings; Phillip argues there is a correlation between the lynchings in past and legal executions today.  Cameron County is of the darkest color.

Why would either be necessary?  I think they are rational.  If you want to terrorize an underclass to keep them from challenging people in power, lynchings and legal executions are a tool in the arsenal.    Because Cameron County has an extreme divide between rich and poor, we would expect many death sentences.  And we get them.

Tricycling Brownsville

So Jeff now daily rides his bicycle to the federal courthouse and parks under the awning while he presides for the Brownsville division over the defense of the huddled masses yearning to breath free. Anyway, with the usual dollop of mimetic desire, I too wanted to ride a bicycle to the courthouse.

Kathy, though, insisted that I could not walk without falling so the risk of a bicycle was too great for the meager amount of life insurance I had purchased. Because I suspected I was unable to qualify for more life insurance, we compromised on the adult tricycle. As it happens, Jeff had purchased the tricycle for his suegro who it seems is even more feeble than I am and he had only been able to ride it once.

Kathy and I headed for the island in Sara's truck, fighting all the way. My daughters thought it was fine if I rode a tricycle, but only if I wore a disguise, so no one would recognize me as their father--Groucho nose, glasses and mustache.

On the way back, somewhere along the way, the flag, you know, orange on a tall fiberglass pole, blew away.

Back on the ground in Brownsville, I raised the seat and tightened things up. Kathy insisted I ride around in the parking lot behind the house some before I ventured out. I also dug up an old bicycle cable with a lock on in that belongs to some long since stolen bicycle. I did fine in the parking lot so I ventured out into the larger world, humming the tune from Indiana Jones.

The first problem is car driving in downtown Brownsville is a blood sport and there are extra points for bicyclists. There was no way I could go on the busy streets. The next problem is that tricycles are wider than bicycles and it takes some calculation to make sure I didn't get stuck on a curb.

I soon discovered 8th Street, low traffic and a nice parking area halfway between the state and federal courthouses: a light pole perfect for locking up an adult tricycle. There wasn't a lot of other traffic.

This particular adult tricycle has a basket of a perfect size for my old beat-up leather briefcase.

However, there is the problem of sunburning the top of my bald pate. My usual straw fedora won't stay on with the blazing speed of an adult tricycle. I dug a gimme cap out of the closet that says "Relax" on the front and it seems to work.

The neighborhood kids are also out on their bikes and when I drive by they come out and join me for a couple of blocks. A half a dozen kids on bikes, one pulling another in a sort of bike trailer filled with yet another kid, cruising the wrong way down 8th street. It may appear to be an odd gathering, but outside of inmates, it has become the larger part of my contact with the world.

Jeff tells me this is a good green thing to do, but then he is much more hopeful about life. I just keep thinking how much money I could save if I could raise enough money to be able to afford to sell the car.

Pascal's First Three Provincial Letters

"Go West Young Man," is the phrase Horace Greeley famously stole from another editorial. "Read Pascal, Old Man" is what my kid suggests. So I have been trying.

I dutifully hopped on the adult tricycle loaned to me by Jeff (the retired syphilis hunter) and peddled over to the Brownsville Public Library. There, the only Pascal available was volume 30 out of the Great Books publication. So I check it out and I also picked up both volumes of the Syntopicon for browsing.

For the last several days, I have been reading The Provincial Letters.  It seemed reasonable to start at the beginning of the book, because I don't know enough about the writings to skip to the good parts.  Also, the last third is filled with science and math and equations that I will probably never be able to read.  Unfortunately several days of reading and re-reading has taken me only through the first three letters.

Austin sneers at the reading of interpretations, histories, biographies, etc. from the classic writers, but with hard guys, I tend to read around them a while before I can get up the courage to actually read the book. Sometimes I only read around them and never get to the book.

In the case of Pascal, except for the two page "Biographical Note" at the beginning of the Volume 30, I haven't read anything.  Usually, trying to get ready to read something this intimidating, I would first read a biography of Pascal, then I would read a history of 17th Century France, then I would read a history of mathematicians and then I would pick up a "the Best of" type of collection that has summaries and explanations surrounding snippets of original work.  The down side to this approach is that I may never actually read anything by the author I am reading about so I don't get a chance to see if I agree with any of the critiques.  For instance, I once read a good biography of James Joyce.  I still have both Ulysses and Finnegans Wake knocking around in the house, unread.

For what very little it may be worth, this is what I have gleaned from the first three Provincial Letters:  Pascal was attracted to a form of French Catholicism called Jansenism.  A theologian for the Jansenists named M. Arnauld was "brought before the Sorbonne" which seems to mean was tried in a court that decided correct theology.  The Sorbonne must have been large because 71 doctors tried to defend him and "on the other side" eighty secular doctors and some forty mendicant friars condemned him.

Pascal came to the rescue with these Provincial letters.  The orthodox view was promoted by the Jesuits and this was that every person had "sufficient grace" given to him by God to obey the divine commandments.  The Jansenists said, maybe so, every person has sufficient grace, but not every person was given by God the "efficacious grace," so they couldn't actually obey the divine commandments by putting this sufficient grace into action.

The Jesuits accused the Jansenists of believing like Protestants and in particular, Calvinists, that God had given this efficacious grace only to a chosen few.  Then there were fence straddlers who agreed with the Jansenists, but wanted to stay on the right side of the argument politically who said, "Sufficient grace is given to all, but not every one has the type of grace that will suffice."

Pascal notes that the choices given are being censured as a Jansenist, being a heretic or being a blockhead and offending against reason.

Pascal has one of his characters argue that silence is the safest position.  If you cannot remain silent, the next safest position is being a blockhead.

I'm sure there is a moral to this story, a punch-line to this joke, a crisis to be weathered, a lesson to be learned.  If I get to the end and figure it out, I'll let you know.