Major premise (Senator Jon Kyl): A sense of empathy has no place in a judge’s decisions.
Minor premise (DSM-IV): Lack of empathy for others is a characteristic of antisocial personality disorder.
Conclusion: Judges should be drawn from a pool of sociopaths.
Tuesday, July 14, 2009
Monday, July 13, 2009
When Sports Stars Fall
Wealth, status, and power. The distribution of these three societal goods is one of the key functions of a socio-political regime.
This was the analytical point of departure offered by Professor Charles Umbanhowar in the introductory political science course I took in my first semester at St. Olaf College. He defined the term “regime” broadly as referring to the way the parts of a whole interact to divide what's desirable.
In the American regime, professional athletes have a disproportionate share of two of three social goods of which Umbanhowar spoke. The wealth they enjoy is almost incomprehensible compared with their counterparts of even a generation ago. The reasons for this are numerous − free agency, ubiquitous cable television exposure, savvy marketing, and so on − but the bottom line is bizarre. This year, the average major league baseball salary is $3.26 million.
Athletes also tend to have high social status, and this can be a problem when children look up to them as role models. The ability to perform heroic feats on the playing field does not necessarily imply that the performer has a character worth emulating.
Yet for decades, the marketing of these athletes included an element of hagiography. Sportswriters spun tales of Babe Ruth’s visits to sick children, but ignored the way he flouted Prohibition. Is it any wonder that eventually there was a backlash against this, debunking many of the old myths?
Perhaps American society is finally ready for a more nuanced view of elite athletes. It should be possible to applaud their remarkable playing skills while recognizing that, as human beings, they are generally no better or worse than most other people. Here in Minnesota, we have had a couple of occasions in recent year to apply this perspective.
Few would have suspected, until it all came crashing down, that one of these would be the beloved Kirby Puckett, who led the Twins to their first World Series title in 1987 and another in 1991. In 2003, he stood trial on sexual assault charges for allegedly groping and falsely imprisoning a woman in a restaurant bathroom. Though Puckett was acquitted, the sad story of his abusive treatment of his wife, Tonya, came to light. He moved to Arizona and died of a heart attack in 2006, at the age of only 45. A sad spectacle.
The alcohol-fueled struggles of football Hall of Famer Carol Eller dependency have been difficult to watch as well. In the late 60s and early 70s, he was a member of the Vikings’ famed Purple People Eaters” front four. But in February 2009, at age 67, he found himself serving a 60-day sentence in the Hennepin County workhouse for assaulting two Minneapolis police officers who tried to stop Eller after he ran a red light. Eller was released from the workhouse on April 23, but his sentence also includes two more months on home monitoring. He also received a concurrent sentence for refusing to submit to chemical testing and a $1500 fine on each charge. The county attorney said he hoped Eller would get the treatment he needs.
America will not stop being a celebrity-obsessed culture anytime soon. To use a sports metaphor, however, justice system actors must strive to “call them as they see them,” not letting sports star status sway decisions. Granted, this is easier said than done in a case like Puckett’s (or Kobe Bryant’s in Colorado, for that matter). Yet anything less would be a betrayal of the democratic ideal.
This was the analytical point of departure offered by Professor Charles Umbanhowar in the introductory political science course I took in my first semester at St. Olaf College. He defined the term “regime” broadly as referring to the way the parts of a whole interact to divide what's desirable.
In the American regime, professional athletes have a disproportionate share of two of three social goods of which Umbanhowar spoke. The wealth they enjoy is almost incomprehensible compared with their counterparts of even a generation ago. The reasons for this are numerous − free agency, ubiquitous cable television exposure, savvy marketing, and so on − but the bottom line is bizarre. This year, the average major league baseball salary is $3.26 million.
Athletes also tend to have high social status, and this can be a problem when children look up to them as role models. The ability to perform heroic feats on the playing field does not necessarily imply that the performer has a character worth emulating.
Yet for decades, the marketing of these athletes included an element of hagiography. Sportswriters spun tales of Babe Ruth’s visits to sick children, but ignored the way he flouted Prohibition. Is it any wonder that eventually there was a backlash against this, debunking many of the old myths?
Perhaps American society is finally ready for a more nuanced view of elite athletes. It should be possible to applaud their remarkable playing skills while recognizing that, as human beings, they are generally no better or worse than most other people. Here in Minnesota, we have had a couple of occasions in recent year to apply this perspective.
Few would have suspected, until it all came crashing down, that one of these would be the beloved Kirby Puckett, who led the Twins to their first World Series title in 1987 and another in 1991. In 2003, he stood trial on sexual assault charges for allegedly groping and falsely imprisoning a woman in a restaurant bathroom. Though Puckett was acquitted, the sad story of his abusive treatment of his wife, Tonya, came to light. He moved to Arizona and died of a heart attack in 2006, at the age of only 45. A sad spectacle.
The alcohol-fueled struggles of football Hall of Famer Carol Eller dependency have been difficult to watch as well. In the late 60s and early 70s, he was a member of the Vikings’ famed Purple People Eaters” front four. But in February 2009, at age 67, he found himself serving a 60-day sentence in the Hennepin County workhouse for assaulting two Minneapolis police officers who tried to stop Eller after he ran a red light. Eller was released from the workhouse on April 23, but his sentence also includes two more months on home monitoring. He also received a concurrent sentence for refusing to submit to chemical testing and a $1500 fine on each charge. The county attorney said he hoped Eller would get the treatment he needs.
America will not stop being a celebrity-obsessed culture anytime soon. To use a sports metaphor, however, justice system actors must strive to “call them as they see them,” not letting sports star status sway decisions. Granted, this is easier said than done in a case like Puckett’s (or Kobe Bryant’s in Colorado, for that matter). Yet anything less would be a betrayal of the democratic ideal.
Sunday, July 12, 2009
Do Your CLE
Lawyers are good at making valid distinctions. As a lawyer myself, perhaps it is self-serving to say that. But from my perspective, the old saw about law school teaching you to “think like a lawyer” is true − and mostly for the better, rather than for the worse.
To be sure, not every distinction, no matter how far-fetched and attenuated, is equally valid. In an adversarial system like ours, however, it’s largely up to judges to decide which arguments are valid. And if an attempted argument is downright frivolous or made in bad faith, the system has sanctions available for attorneys who cross the line.
Last spring, the Minnesota Supreme Court was faced with the question of whether a criminal conviction remains valid even if the prosecutor lacked a valid law license when the conviction was obtained. The case involved an assistant Hennepin County attorney named Gemma Graham who had failed to do mandatory continuing legal education for twenty years. Even though she had a restricted law license, Ms. Graham prosecuted a first-degree murder case against Alonzo J. Graham (no relation). In a unanimous ruling, the Minnesota Supreme Court said the conviction must stand because the defendant was not able to show any prejudice from the prosecutor’s lack of a valid license.
The prosecutor who didn’t meet the CLE requirements will face two types of sanctions. The Minnesota Supreme Court placed her on probation for two years, and she also received unspecified internal discipline within the Hennepin County Attorney’s Office.
On every level, this is the right outcome. Respect for rules is important, and if CLE requirements are mandatory for a law license, that should mean something. But it doesn’t follow that an otherwise valid conviction should be thrown out, just because the prosecutor was not in compliance.
To be sure, not every distinction, no matter how far-fetched and attenuated, is equally valid. In an adversarial system like ours, however, it’s largely up to judges to decide which arguments are valid. And if an attempted argument is downright frivolous or made in bad faith, the system has sanctions available for attorneys who cross the line.
Last spring, the Minnesota Supreme Court was faced with the question of whether a criminal conviction remains valid even if the prosecutor lacked a valid law license when the conviction was obtained. The case involved an assistant Hennepin County attorney named Gemma Graham who had failed to do mandatory continuing legal education for twenty years. Even though she had a restricted law license, Ms. Graham prosecuted a first-degree murder case against Alonzo J. Graham (no relation). In a unanimous ruling, the Minnesota Supreme Court said the conviction must stand because the defendant was not able to show any prejudice from the prosecutor’s lack of a valid license.
The prosecutor who didn’t meet the CLE requirements will face two types of sanctions. The Minnesota Supreme Court placed her on probation for two years, and she also received unspecified internal discipline within the Hennepin County Attorney’s Office.
On every level, this is the right outcome. Respect for rules is important, and if CLE requirements are mandatory for a law license, that should mean something. But it doesn’t follow that an otherwise valid conviction should be thrown out, just because the prosecutor was not in compliance.
Tuesday, July 7, 2009
Only Connect - Like Wellstone Did
With his hand on the late Senator Paul Wellstone’s bible, Al Franken took the oath of office today as Minnesota’s junior senator. In doing so, he paid tribute to the man who not only inspired him to run, but who modeled the humane values without which politics is nothing but − as Clausewitz warned − war by other means.
For nearly eight months, Franken’s Republican opponent, Norm Coleman, waged a rear-guard legal challenge to the election results. With each successive Franken victory − before the State Canvassing Board, then a specially constituted trial court, and finally the Minnesota Supreme Court − Coleman’s chances of overturning the outcome became increasingly remote. As the legal fees mounted into the millions, it seemed as if his real purpose was not to win, but only to block Franken from being seated for as long as possible.
Happily, Coleman’s dubious endgame is now over. He belatedly conceded the race last week, after the Minnesota Supreme Court ruled, and we now have two senators again, for the first time since Coleman’s term ended in January.
To mark the occasion, I took Franken’s Lies and the Lying Liars Who Tell Them down from my bookshelf. My parents had given it to me as a birthday present in 2003, and this provenance to the book adds an extra layer of meaning to it for me. Looking at the note my mom wrote inside the front cover, I was touched by her words. Then I realized that she had written on behalf of my dad as well. Reading between the lines, this spoke to me of my dad’s Parkinson’s disease, which he had been diagnosed with in September 2003 and lived with until his death four years later.
In the book itself, Franken writes candidly of losing a parent. He recalls how his dad was part of a theatrical group composed of senior citizens that performed skits in nursing homes during Wellstone’s first campaign for the Senate in 1990. After the senior Mr. Franken died in 1993, Al’s mom began to struggle and was hospitalized for a time due to severe depression.
The last time Al Franken talked with Paul Wellstone, about six weeks before Wellstone’s untimely death in a plane crash on October 25, 2002, the talk was not about Wellstone’s heated race for the Senate against Norm Coleman. It was about Al Franken’s mom. Wellstone asked how Al’s mom was doing. Franken lamented that it was difficult to have a conversation with her, because of the toll that age, illness, and her husband’s death had taken on her faculties.
Wellstone’s response was deeply human: “You know, touch means so much.”
It does indeed. As our world gets more and more wired, there’s still no substitute for face-to-face connection. “Reach out and touch someone,” went the flower company ad. Sometimes, in a far-flung country, that’s all we can do. But even better is to be there.
The talk will soon turn to Franken’s position on issues like the nomination of Sonja Sotomajor to the Supreme Court. For now, let’s pause a moment and recognize the importance of holding on to one’s humanity amid the hurly burly demands of politics. Nearly seven years after his death, Paul Wellstone remains a powerful exemplar of how to do that well.
For nearly eight months, Franken’s Republican opponent, Norm Coleman, waged a rear-guard legal challenge to the election results. With each successive Franken victory − before the State Canvassing Board, then a specially constituted trial court, and finally the Minnesota Supreme Court − Coleman’s chances of overturning the outcome became increasingly remote. As the legal fees mounted into the millions, it seemed as if his real purpose was not to win, but only to block Franken from being seated for as long as possible.
Happily, Coleman’s dubious endgame is now over. He belatedly conceded the race last week, after the Minnesota Supreme Court ruled, and we now have two senators again, for the first time since Coleman’s term ended in January.
To mark the occasion, I took Franken’s Lies and the Lying Liars Who Tell Them down from my bookshelf. My parents had given it to me as a birthday present in 2003, and this provenance to the book adds an extra layer of meaning to it for me. Looking at the note my mom wrote inside the front cover, I was touched by her words. Then I realized that she had written on behalf of my dad as well. Reading between the lines, this spoke to me of my dad’s Parkinson’s disease, which he had been diagnosed with in September 2003 and lived with until his death four years later.
In the book itself, Franken writes candidly of losing a parent. He recalls how his dad was part of a theatrical group composed of senior citizens that performed skits in nursing homes during Wellstone’s first campaign for the Senate in 1990. After the senior Mr. Franken died in 1993, Al’s mom began to struggle and was hospitalized for a time due to severe depression.
The last time Al Franken talked with Paul Wellstone, about six weeks before Wellstone’s untimely death in a plane crash on October 25, 2002, the talk was not about Wellstone’s heated race for the Senate against Norm Coleman. It was about Al Franken’s mom. Wellstone asked how Al’s mom was doing. Franken lamented that it was difficult to have a conversation with her, because of the toll that age, illness, and her husband’s death had taken on her faculties.
Wellstone’s response was deeply human: “You know, touch means so much.”
It does indeed. As our world gets more and more wired, there’s still no substitute for face-to-face connection. “Reach out and touch someone,” went the flower company ad. Sometimes, in a far-flung country, that’s all we can do. But even better is to be there.
The talk will soon turn to Franken’s position on issues like the nomination of Sonja Sotomajor to the Supreme Court. For now, let’s pause a moment and recognize the importance of holding on to one’s humanity amid the hurly burly demands of politics. Nearly seven years after his death, Paul Wellstone remains a powerful exemplar of how to do that well.
Saturday, July 4, 2009
No Shame in Bowing
Tsuyoshi Kusangi, a popular Japanese entertainer, had too much to drink and was arrested for dancing naked in a Tokyo park around 3 a.m. on April 23.
The next day, he appeared at a news conference and apologized for his behavior. “I drank a lot, and did not know what I was doing. As an adult, I did something shameful.” His apology also included a non-verbal component, as he bowed his head so that it nearly grazed the thick row of microphones arrayed in front of him.
The next day, he appeared at a news conference and apologized for his behavior. “I drank a lot, and did not know what I was doing. As an adult, I did something shameful.” His apology also included a non-verbal component, as he bowed his head so that it nearly grazed the thick row of microphones arrayed in front of him.
Following Kusangi’s apology, the authorities dropped the charges, and he has returned to his hit television show.
Could this ever happen in America?
Could this ever happen in America?
Wednesday, July 1, 2009
A Legacy of Shame
Sticking a psychological label on someone based merely on media accounts is a dubious way of trying to get at the truth. This is the case even if the label is being pinned on the notorious and virulently vilified Bernard Madoff.
Madoff is the former investment guru who defrauded investors out of upwards of $50 billion in a decades-long ponzi scheme that collapsed in December. New York Magazine dubbed him “the monster mensch,” with a cover depicting him as a tricked-up Mephistopheles. Many victims lost their life savings and numerous charities were forced to shut down. At first, Madoff was allowed to remain on house arrest, but eventually he was jailed, and yesterday a federal judge sentenced him to 150 years in prison.
Madoff is the former investment guru who defrauded investors out of upwards of $50 billion in a decades-long ponzi scheme that collapsed in December. New York Magazine dubbed him “the monster mensch,” with a cover depicting him as a tricked-up Mephistopheles. Many victims lost their life savings and numerous charities were forced to shut down. At first, Madoff was allowed to remain on house arrest, but eventually he was jailed, and yesterday a federal judge sentenced him to 150 years in prison.
Last week, I attended an online CLE on civil commitment of the mentally ill in which one of presenters, a board-certified psychologist named Samuel Myers, glibly suggested that Madoff illustrated antisocial personality disorder. Dr. Myers was trying to show how the categories in the DSM-IV, the diagnostic and statistical manual used by mental health professionals, can help predict the level of someone’s risk of causing harm to self or others. Though he cautioned that the DSM-IV categories must be combined with clinical judgment, that didn’t stop him from tossing around the names of celebrities to illustrate various disorders, such as
● Winston Churchill for bipolar disorder
● Princess Diana for borderline personality
● General Patton for narcissism
● Bernard Madoff for antisocial personality
I can see how examples like these can be useful teaching tools, yet they can also easily give rise to red herrings. Bernard Madoff, for example, certainly was a con man and a pathological liar, looking people in the eye while robbing them blind. But if Madoff stands for antisocial personality disorder, how does one account for the fact that he confessed to his two sons (who eventually turned him in to prosecutors)?
Could the concept of “shame” shed some light on Madoff’s behavior? Surely it is suggestive that shame was a word Madoff used himself. In his remarks at sentencing, he spoke of the legacy of shame he had left to his family. Of course, as a confirmed liar, Madoff’s concern about shame might have been a sham — but who, ultimately, can know the human heart? My point is to beware not only of lies and the lying liars who tell them, but of glib labels that obscure thought, even if those labels come from the DSM-IV.
● Winston Churchill for bipolar disorder
● Princess Diana for borderline personality
● General Patton for narcissism
● Bernard Madoff for antisocial personality
I can see how examples like these can be useful teaching tools, yet they can also easily give rise to red herrings. Bernard Madoff, for example, certainly was a con man and a pathological liar, looking people in the eye while robbing them blind. But if Madoff stands for antisocial personality disorder, how does one account for the fact that he confessed to his two sons (who eventually turned him in to prosecutors)?
Could the concept of “shame” shed some light on Madoff’s behavior? Surely it is suggestive that shame was a word Madoff used himself. In his remarks at sentencing, he spoke of the legacy of shame he had left to his family. Of course, as a confirmed liar, Madoff’s concern about shame might have been a sham — but who, ultimately, can know the human heart? My point is to beware not only of lies and the lying liars who tell them, but of glib labels that obscure thought, even if those labels come from the DSM-IV.
Friday, June 26, 2009
Trespass and the Homeless
Trespass is a venerable legal term, one of the building blocks of the common law. The definitions in Black’s Law Dictionary of the various types go on and on for pages, hinting at archaic hair-splitting now largely lost to time. Trespass on the case, trespass to chattels, and so on — with criminal trespass only one, comparatively compact, meaning among many.
Today, in America, it is the criminal meaning that prevails. Going on someone else’s property without permission is against the law and can be prosecuted as a criminal offense. In our mind’s eye, many of us still see the context for such an offense as, say, a hunter ignoring a “no trespassing” sign in order to hunt for deer or other game on private land.
Today, in America, it is the criminal meaning that prevails. Going on someone else’s property without permission is against the law and can be prosecuted as a criminal offense. In our mind’s eye, many of us still see the context for such an offense as, say, a hunter ignoring a “no trespassing” sign in order to hunt for deer or other game on private land.
Tonight’s PBS report from Miami on homeless people taking up residence in foreclosed homes showed the old concept of trespass bumping up against our complex contemporary reality. The NOW program followed Max Rameau, a community activist whose organization, Take Back the Land, seeks to match responsible homeless families (not by any means an oxymoron) with empty homes that are still livable.
This used to be called “squatting,” and it is still against the law. Rambeau’s response is that it is immoral to leave people on the street when society has failed to build enough affordable housing and the Great Recession relentlessly adds to the ranks of the homeless. Nationally, depending on how homelessness is measured, those numbers are expected to rise from roughly 3 million to roughly 4 million people who will be homeless at one time or another this year. How many of us would have thought, as recently as two years ago, that tent cities would spring up in America?
There is also a very particular back story in South Florida. In 2006, the Miami Herald broke the story about rampant fraud in the Miami-Dade public housing agency. The paper won a Pulitzer Prize for revealing that Oscar Rivero, a developer who had taken over $700,000 in public money to build 54 affordable housing units, had actually spent the money on a house for himself, complete with appliances, pool, and of course thorough termite inspection. The Herald’s investigation revealed numerous other instances of fraud in the agency — so many, indeed, that the federal Housing and Urban Development agency took control of it.
For me, this background complicates the moral calculus of whether the civil disobedience Rambeau’s group is engaging in is justified. Does it promote a culture of lawlessness that will further undermine neighborhoods, contributing to more crime and homelessness? In other words, is Rambeau an urban Rambo, taking the law into his own ends in a reckless manner, like Sylvester Stallone’s movie character?
Perhaps it would help to get down to cases. The NOW program highlighted a story about a single mother trying to get a Ph. D. while working a cleaning job. She moved into a foreclosed house with her children, only to return one day to find their belongings strewn about the property. After Rambeau organized a media event to confront the property management company, the woman and her family ended up staying for a few more months in the house. What difficult judgment calls situations like this must be for law enforcement and prosecutors, having to decide whether to use their discretion to seek trespassing charges against people looking for nothing more than a roof over their heads.
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