Should Doctors Play Executioner?

After the botched execution in Oklahoma, Room For Debate wrestles with question. Neil J. Farber examines opinion within the medical community:

In the survey in 2000, 1,000 physicians in the United States were asked whether they condoned colleagues’ involvement in capital punishment. Of the 482 physicians who returned questionnaires, 80 percent said they believed at least one of the proscribed actions by the American Medical Association and the American College of Physicans (starting IV lines, monitoring vital signs, selecting injection sites, administering the lethal drugs, determining death, maintaining lethal injection devices, supervising personnel who give the lethal injections, and ordering the lethal drugs) was actually permitted, and 53 percent said 5 or more of the actions were acceptable. Those who approved of the death penalty were more likely to approve doctors’ involvement with several actions.

Sidney Wolfe makes the standard case against doctors administering lethal injection drugs:

[G]roups like the American Medical Association oppose participation and anesthesiologists can lose board certification for taking part in executions. Involvement perverts the duties and responsibilities that physicians have to heal, not to hurt. Administering a lethal dose of drugs is the most serious violation of ethics, but merely being present to pronounce a patient dead still makes that physician complicit in someone’s killing, as a necessary part of the death squad.

Ken Baum and Julie Cantor share a different perspective:

Physician involvement in lethal injection can make capital punishment less grotesque, more palatable, and even routine. But so long as the state uses the tools of the physician to kill its citizens, those who wish to step in to ensure that executions are, at the very least, competently handled should have the option to do so. Anything else is death penalty politics at the expense of the condemned. And no matter where you come out on capital punishment, no one should be sentenced to a botched execution.

Iraq Votes. But Will It Matter?

Joel Wing outlines the likely results of yesterday’s general election in Iraq:

Most Iraq watchers now seem to believe that the prime minister [Nouri al-Maliki] will get the most seats in parliament, and then go through a very long process of negotiations that could drag out for up to a year, and ensure himself another four years in office. The premier is hoping that his Shiite base will come out for him out of fear of the growing insurgency, and give him a plurality of votes. He will then be able to play upon the splits within the Sunni parties to ally with Deputy Premier Salah al-Mutlaq. If that gives him momentum the history of Iraqi politics is for the other parties to jump on board to assure themselves positions within the new government.

An alternative scenario could play out however. Last year ISCI was able to cut into Maliki’s base, and are hoping to repeat that again. It has portrayed itself as a nationalist party that has the support of the religious establishment in Najaf. The Sadrists’ Ahrar bloc believes that it can maintain its alliance with the Supreme Council that it forged in the 2013 elections. If they get anything near the number of seats of Maliki it will be a free for all for to create the majority necessary for a new government.

Bob Dreyfuss recounts how Maliki has cemented himself in power since the last election:

Back in 2010, when an opposition party led by Ayad Allawi—a wily, nonsectarian, secular Shiite politician with a largely Sunni base—won the biggest share of the vote, both the United States and Iran weighed in to prop up Maliki and ensure that he was able to form a government that eventually excluded Allawi. A year later, in 2011, the remaining American troops departed, and within days Maliki went to war against Sunni politicians, the Sunni establishment and others who opposed his authoritarian style.

Maliki used spurious charges of terrorism against top politicos, including the Sunni vice president of Iraq, who was forced to flee for his life. Following that, Maliki cracked down viciously on peaceful, Arab Spring–style protests in Anbar, killing hundreds and detaining thousands. …

So, it’s no wonder that the Iraqi insurgency that erupted after 2003 is back. This time, it’s enhanced by the chaos in Syria, where a largely Sunni army of Islamist fanatics and rag-tag rebels tied to Al Qaeda and ISIS are battling the government of President Bashar al-Assad. Cities such as Ramadi and Fallujah have turned into strongholds of the insurgency, and the anti-Maliki radicals have deployed waves of suicide bombers and car bomb experts to slaughter thousands of Shiite civilians in markets, public squares and other soft targets. They’ve also carried out a lethal pattern of assassinations of moderate and establishment Sunnis outside Baghdad.

Jay Ulfelder doubts the polls will stem the rising tide of violence:

Iraq is already suffering mass atrocities of its own at the hands of insurgent groups who routinely kill large numbers of civilians in indiscriminate attacks, every one of which would stun American or European publics if it happened there. According to the widely respected Iraq Body Count project, the pace of civilian killings in Iraq accelerated sharply in July 2013 after a several-year lull of sorts in which “only” a few hundred civilians were dying from violence each month. Since the middle of last year, the civilian toll has averaged more than 1,000 fatalities per month. That’s well off the pace of 2006-2007, the peak period of civilian casualties under Coalition occupation, but it’s still an astonishing level of violence. …

In theory, elections are supposed to be a brake on this process, giving rival factions opportunities to compete for power and influence state policy in nonviolent ways. In practice, this often isn’t the case. Instead, Iraq appears to be following the more conventional path in which election winners focus on consolidating their own power instead of governing well, and excluded factions seek other means to advance their interests.

Zalmay Khalilzad, who also expects Maliki to remain in power, addresses how the US should respond:

A new leader, untainted by a record of distrust and broken deals, could offer Iraq a promising way forward. A U.S. push to oust Maliki, however, would be risky. Relations between Washington and Kabul deteriorated sharply after Afghan president Hamid Karzai won re-election over the Obama Administration’s opposition. The experience with Maliki, moreover, shows that U.S. support for the winning candidate does not necessarily translate into reliable governance. …

Instead of relying on preferred Iraqi leaders, the Obama Administration should clearly articulate the program of reform it wants implemented during the process of government formation. Iraq’s constitution, which emphasizes federalism and decentralization of power, provides a roadmap for reform. Continued effort at monopolization of power by a majoritarian central government could incite a Kurdish push for sovereignty, as well as increased violence among Iraq’s Sunni population. Some Sunni leaders, after opposing federalism in the years after Saddam’s overthrow, now seek recognition of its provinces as federal regions.

Book Club: Was There An Empty Tomb?

Resurrection

A reader challenges a part of Ehrman’s book we haven’t discussed yet:

Reading your thoughts and the reader responses so far, I’m surprised no one has mentioned Ehrman’s claim, in Chapter Four, that Jesus most likely wasn’t given a proper burial, meaning there was no tomb for his resurrection to leave empty – nor an actual body left to be resurrected, as theological orthodoxy would seem to demand. An excerpt from this chapter was recently featured on The Daily Beast, in which Ehrman makes this explicit: “Without an empty tomb, there would be no ground for saying that Jesus was physically raised.” And clearly, as Ehrman shows in his book, the “empty tomb” features prominently in Christian apologetics on this issue. The idea that Jesus really was buried allows Christians to ask, “Well, then what did happen to Jesus’ body?” If he wasn’t eaten by dogs, then we need to somehow account for his body, which people certainly would have been looking for after his followers started saying he was raised from the dead. Or so the argument goes.

bookclub-beagle-trAs it happens, the chapter on this issue by Craig Evans in the evangelical response to Ehrman’s book was the one I actually found perhaps most persuasive, and your readers should be aware of it. Evans cites a variety of ancient texts – including passages from Philo, Josephus, and Roman legal documents – that give us good reasons to think Roman authorities were tolerant of Jewish religious customs. It would take too long to go through all of Evans’ evidence, but their cumulative force is striking, and he makes clear that his argument especially concerns what the Romans allowed in Jerusalem, the center of Jewish religious life, where religious demands for performing certain rites, like the burial of the dead, would have been especially forceful (Jews in other places, such as Alexandria, seemed to fare worse).

Even Ehrman’s own book unwittingly offers evidence for this. Recall the account he gives of Pontius Pilate erecting images of the Roman emperor in Jerusalem, which violated Jewish beliefs about “graven images.” What happened after the Jewish uproar over this? They were removed.

Evans also makes clear that tolerance for Jewish burial customs extended, in various circumstances, to those who were crucified. Most interestingly, in my view, is the archaeological evidence he marshals on this point.

He walks the reader through examples we have of tombs and (more frequently) ossuaries containing the remnants of those crucified or nails of the kind used in crucifixions covered in calcium, meaning they were once in human bones. In short, not everyone who was crucified, and certainly not all Jews, were simply left for the wild dogs or carrion birds to eat. Evans cites Jodi Magness, a Jewish archaeologist at Ehrman’s own UNC-Chapel Hill, who summarizes the matter this way:

Gospel account of Jesus’ burial are largely consistent with the archaeological evidence. Although archaeology does not prove there was a follower of Jesus named Joseph of Arimathea or that Pontius Pilate granted his request for Jesus’ body, the Gospel accounts describing Jesus’ removal from the cross and burial are consistent with archaeological evidence and with Jewish law.

And speaking of Joseph of Arimathea, Evans argues that even that story has some real credence. Because the Sanhedrin, or Jewish Council, delivered Jesus to the Roman authorities, they would have been responsible for arranging a proper burial. So whether or not Joseph actually existed, the broad outline of the story he figures in is, according to Evans, reasonably consonant with the customs of the day.

Lastly, Ehrman makes a big deal of the fact that in the early creed Paul cites in his first letter to the how-jesus-became-godCorinthians, it merely says “And he was buried” rather than “And he was buried in a tomb.” When I read Ehrman’s book, I couldn’t understand quite why that mattered. Being buried implies a tomb, or a grave of some kind, but regardless being buried is not the same as being left to the dogs. Evans makes exactly the same point. And as for the supposed lack of symmetry in the creed – the line corresponding to the one just mentioned says “And he appeared to Cephas,” which leads Ehrman to think Joseph should be noted as the one who buried Jesus – Evans makes the reasonable point that naming who Jesus appeared to after his resurrection would be a far more important detail to include than the name of who buried Jesus, so the comparison doesn’t quite hold. Of course, maybe Joseph wasn’t named because that particular tradition arose later, but even if it did, the lack of knowing exactly who buried Jesus does nothing to alter the other contextual evidence that leads Evans to argue that it wouldn’t have been unusual for Jesus, a Jew in Jerusalem, to be given a proper burial.

Overall, then, this is one point where my layman reading of both sides of the argument makes me lean toward Ehrman’s evangelical critics.

Agreed. Another critical point worth reiterating in this context: perhaps the most striking thing in the book is that Ehrman explicitly states he has changed his mind as to when the belief in Jesus’ divinity arose. He used to think it came about decades later, but is now convinced by the evidence that the resurrection was a very early Christian belief. So the empty tomb is a real possibility and the resurrection was claimed by the earliest Christians. Sometimes religious beliefs are weakened by historical evidence; but sometimes they are actually strengthened.

(Read the whole Book Club thread on How Jesus Became God here. Email any responses to bookclub@andrewsullivan.com rather than the main account, and please try to keep them under 500 words. Painting: The Resurrection Of Jesus by Piero Della Francesca.)

Yes, Mormons Can Be Funny

A parody of an LDS childrens’ book meets the Mormon prohibition on facial hair. It’s from the BunYion, at BYU:

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The comments are a trip:

It saddens me that the men of the church are addicted to beards. I recently heard that Utah leads the nation in subscriptions to “Beard Aficionado” magazine. Some may justify their addiction by saying beards are “natural” that “no one is getting hurt” or that I only grow “soft” beards and not “hard” beards. However, once you grow a beard you don’t know what future happiness will be forfeited. Remember the story that was told in General Conference about the young woman who refused to marry a young man because, in the past, the young man had a beard? Sin has consequences!

Another:

For all of those facial hair lovers, please know that there is still hope. For sometime I struggled with “beard or no beard” I would play on the edge with mustaches, goatees, and I even attempted a handlebar at one point. Just to see what it was like….

After sometime I noticed something missing in my life. I was with some friends and I noticed they all seemed to be happy and I couldn’t tell why. Then I realized it, they all were clean shaven! I went home that very night and threw away all my beard trimming equipment, found an old razor, and shaved off those vile hairs. Oh the silky smooth feeling of redemption. If you feel manly, awesome, and/ or like you could survive a zombie apocalypse with only a crowbar you don’t have to stay that way. Shave off your beard and go from looking like a man to a boy in a matter of minutes. Shave brethren, shaving is the answer.

How Many Obamacare Enrollees Have Paid Up?

A committee report by House Republicans claims it’s relatively few:

Only two-thirds of people signing up on Obamacare’s exchanges paid their premiums as of April 15, the US House Energy and Commerce Committee reported Wednesday. If true, that means one-third of people on the exchanges had not completed the final step to actually obtaining health insurance in time for the committee’s report.

Cohn calls bullshit:

With House Republican committee reports, you always have to read the details. And in this case the details say quite a lot.

The committee staff got their information directly from insurers, but it’s only valid up through April 15. As experts and industry officials quickly pointed out, that’s too early to get an accurate sense of the payup rate.

Remember, open enrollment officially ended on March 31. And, thanks to the Administration’s extensions, people were still signing up well into April. At the time the Committee requested the information, many of these people would have just received their first invoices for payment. Payment wouldn’t have been due until the end of the month—in other words, Wednesday. It’s safe to assume that lots of people waited until the last minute to send their checks, which means it’s safe to assume the real payup rate is higher than 67 percent.

Benen scoffs at “the latest evolution in the GOP’s anti-healthcare line”:

What started with “no one will want to sign up” eventually became “no one should sign up,” which morphed into “not enough people are signing up,” and finally “those who did sign up don’t count.”

But Suderman points the finger at the administration:

Republicans on the Committee are aware that the information they have so far is incomplete, and they are going to follow up with insurers toward the end of May. So we’ll get more information—eventually. But it’s going to take time. The administration could have headed off a lot of this sort of discussion by being more transparent from the start, releasing updates about payment rates, along with sign ups and demographics, and context about deadlines as well. Instead, they stonewalled and deflected. Which is how we ended with a Republican Committee trying to get this information themselves, and a report that at most suggests an eventual possibility of significant non-payment problems, but doesn’t demonstrate much of anything right now. For the time being, then, we’re left right back where we started, with no solid, comprehensive information to rely on about how many sign ups have paid.

And Philip Klein thinks the report “puts HHS officials in a pickle”:

If they attack the Republican report as inaccurate, it will be an implicit acknowledgement that they have numbers that they aren’t releasing. So their choice is either to stay silent and let the GOP-obtained data fill the news vacuum, or release detailed enrollment data. It’s way past time for them to come clean.

The Benghazi Email

[Update: please see my correction to this post here]

A couple of obvious things. The notion that the Ben Rhodes email was really about the broader situation in the Middle East and not about Benghazi – something actually peddled with a straight face by Jay Carney yesterday – is absurd. The email was specifically sent to prep Susan Rice for her Sunday morning talk show appearances after the attack on the US Consulate. It’s an obvious attempt to push back on the idea that the attack in Benghazi was a coordinated Jihadist effort which took the US by surprise and to present the infamous video as the real cause. I really can’t see any other viable interpretation:

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The question is whether Rhodes was conveying the best spin on a confusing situation, or whether he knew full well that the video was unrelated to the attack and was providing political cover for the president. I simply don’t know the answer to that. Spinning and lying are related but different things. But even if the reports were confusing, as they probably were, Rhodes is clearly trying to pin the attack on one cause alone, for which there was no categorical evidence. At the very least, this was self-serving spin. But that alone, it seems to me, is hardly a high crime or misdemeanor. Governments spin events all the time. And if there’s chaos and confusion, best to cherry pick the facts that put you in the best light – especially in an election season. Until we have evidence that Rhodes was knowingly propagating something untrue, I don’t think there’s much here.

But the administration’s withholding that email from previous inquiries truly does stink. In fact, that is the real reason to regard this email as meaningful. Yes, I know this is really about finding ways to derail Hillary Clinton’s path to the White House – this WSJ editorial almost says that out loud at the end. Yes, it’s really not that big a deal – the real scandal is that the consulate was unprotected and vulnerable and the blame for that has always belonged to the State Department and to tighter budgets imposed by the GOP. But you don’t withhold transparently relevant evidence if you truly believe you have nothing to hide.

Letting Go Of Global Hegemony

US-POLITICS-OBAMA

Yesterday’s Wall Street Journal poll on foreign policy made for a stark contrast with the growing consensus among the chattering classes about president Obama’s foreign policy. Here’s MoDo channeling the frustration of many and addressing herself directly to Obama:

You are the American president. And the American president should not perpetually use the word “eventually.” And he should not set a tone of resignation with references to this being a relay race and say he’s willing to take “a quarter of a loaf or half a loaf,” and muse that things may not come “to full fruition on your timetable.”

An American president should never say, as you did to the New Yorker editor, David Remnick, about presidents through history: “We’re part of a long-running story. We just try to get our paragraph right.” Mr. President, I am just trying to get my paragraph right. You need to think bigger.

A great line. Until you ask yourself what exactly does she mean by thinking bigger. The closest MoDo comes is the following:

Especially now that we have this scary World War III vibe with the Russians, we expect the president, especially one who ran as Babe Ruth, to hit home runs.

Home-runs, please is not exactly a productive contribution to the discussion. What on earth would a “home-run” mean in Ukraine, for example? But this analysis misses one core fact: Americans, in polling, really do not want to be policing the world any more. Here’s one take-away from the WSJ poll:

Screen Shot 2014-04-30 at 5.17.17 PMThat’s a record 47 percent favoring a less active foreign policy than Obama has conducted. As for the “scary World War III vibe” MoDo wants reassurance on, only 5 percent of Americans want the US out front alone on Ukraine. A quarter want to delegate the issue to the EU. And almost half want action only in cooperation with other countries. The decidedly non-interventionist public also strongly opposed a strike in Syria; wanted withdrawal from Iraq and Afghanistan; and still prefer, in record numbers, for the US president to focus on domestic affairs. More to the point, this non-interventionist consensus crosses party lines. Obama has, on most issues, stayed in line with popular opinion. That’s one key reason why Rand Paul has traction. And it’s one reason Hillary Clinton will be vulnerable if she appears to want to return to neocon reflexes.

The paradox, it seems to me, is that Americans also miss the glory days. They both want withdrawal from the world but feel nostalgic for the heady post-Cold War days of easy hegemony, a budget surplus and a global reputation not stained by military occupations and torture. Robert Kagan had a shrewd column a month ago on this strange confluence of a president pursuing popular policies and becoming unpopular as a result. Here’s the poll of polls on foreign policy for Obama:

Screen Shot 2014-04-30 at 5.32.58 PM

The switch to disapproval happened about a year ago. Some of the subsequent shift may be due to the harsh criticism Obama received for not striking Syria after seeming to move toward it (even though the public wants to go to war in Syria like they want to abolish social security). Some of it may be due to Putin’s ugly machinations – prompting unreconstructed neocons like McCain to blame Obama for somehow encouraging it. The open wound of the Israel-Palestine question – where Obama has been very very active but without any progress at all – may also be a factor. But I suspect the bigger picture is that we’ve seen both an acceptance of a much more restrained America after the catastrophe of neocon governance and subsequent lingering unease about no longer being the sole superpower whose authoritah is always respected.

My view is that Obama has done about as good a job as possible in managing the core task of his presidency: letting self-defeating global hegemony go. That required a balancing act – of intervention where absolutely necessary and caution elsewhere. He prevented the world economy tipping into a second Great Depression, has maintained overwhelming military superiority and shored up Asian alliances even as he concedes, as we should, that China will be the dominant power in the region in the 21st Century. He rescued us from the Iraq and Afghanistan disasters, without chaos or immediate blowback. He’s successfully coordinating European responses to Russian aggression in Ukraine. It all adds up to the effective tending to a new era in which other countries and regions no longer accept American supremacy, and when US ideals – such as opposing torture – have been revealed as frauds.

This kind of pragmatic balancing act has none of the glory of the Cold War and a dispiriting (to some) element of retreat. But in many ways, this is inevitable. The staggering success of the West’s model in the last two decades is not one that can be sustained at the same pace. You don’t get to liberate Europe twice. And of course the biggest factors behind this new climate are the disastrous wars in Afghanistan and Iraq. They essentially revealed the US military as all-powerful on paper but inevitably insufficient to deal with sectarian hatred in the Muslim world, or running a “country” that cannot be run outside of a dictatorship or authoritarian figure. Even drones reached a point quite quickly at which their costs outweighed their benefits.

This is the essential context which makes sense of Obama’s pragmatic re-calibration of US foreign policy. What this picture reminds me of is the conventional wisdom about George H. W. Bush’s foreign policy at the time. In retrospect, his management of Soviet collapse was deeply under-rated, as was his decision not to invade Iraq. Like Obama, he saw China as a naturally emergent power to be coaxed rather than alienated. Like Obama, he tried and failed to move the Israelis out of their new project of Greater Israel. He was never going to be a Reagan, but in politics and world affairs, timing is everything. The difference, of course, is that Bush followed Reagan, whereas Obama followed the foreign policy equivalent of two terms of Jimmy Carter. So the bathos of pragmatism is all the more vivid this time around.

The one exception to this picture with respect to Obama is the overture to Iran. If he manages to resolve the nuclear issue in the next year, it will be a clear and revolutionary break from the past, as well as being the sanest approach to handling that poisonous but rational regime. But again, his success, if it occurs, will prompt more cat-calls from the neocons and loathing from the hard right. And it will not be greeted with the same relief as the end of the last Cold War, not least because the ayatollahs will remain in power, even if the landscape then shifts against them. Avoiding war is often not as popular as starting one. But it is what this country wants at this juncture in history, and it’s what the world needs. In the end, even queasy Americans may see the pragmatic sense in much of it. But they’ll keep it quiet if they do.

(Photo of Obama yesterday by Brendan Smialowski/Getty)

Do I Sound Gay? Ctd

David Cross’s genius and NSFW take on the subject:

I have to say I haven’t thought about this in a while, and since posting that promo for the documentary, I find myself a little paranoid. Maybe it applies to me. I have never been able to bear hearing myself or watching myself on TV. It creeps me out in visceral ways. I can’t even listen to a podcast for very long without wanting to coil up in a ball of self-loathing. (By self-loathing, I don’t mean merely because of my sexual orientation. My self-hatred is so much more extensive and varied than that.) Still, I doubt it has nothing to do with anxiety over the “gay voice.”

I actually had a dream not too long ago where I was listening to an interview I gave on the radio and I sounded like Princess Diana. Seriously, my voice was quite clearly a woman’s. And it wasn’t a pleasant dream. Occasionally, I’ll catch a whiff of an old clip from, say, Charlie Rose or Brian Lamb, and my gay voice sounds gayer then than it does now – or at least so it seems to me. And in fact, before I came out in my late teens, I was much more stereotypically gay than I am now. I wore dandy-esque clothes; I was in the theater; as president of the Oxford Union, my first debate included a drag queen (by my invitation); at Oxford, I gamely initiated the Poohsticks Club, and my nickname was Piglet! I wasn’t just into college drama, I played the lead role in Another Country, a play where my first line was “I want to pour honey all over him and lick it off again.” No wonder that I was outed by the college newspaper, even though I’d never touched another man.

Sometimes I wonder if the outwardly gay presentation, for me at least, was related to the closet. Because I could not be public and open about my sexual orientation, my psyche sought to express it in other ways. What is repressed up-front finds a way to express itself indirectly. That’s why when I see a priest all decked out in frills and lace and gold, I immediately think: another repressed gay. In fact, I doubt whether much of the more elaborate liturgy, ritual and drama of high Catholicism isn’t entirely a function of frustrated queens finding some outlet for their otherwise repressed nature.

But after I came out, and grew up as a gay man in the midst of a sobering, mind-concentrating plague, I found those external signals less necessary.

I’m not saying that this was a conscious or deliberate process. It just happened. In fact, it was only after coming out that I got in touch with more stereotypically masculine aspects of my personality. I grew much more comfortable in my body and became a gym-rat. I grew a beard and found myself more comfortable with straight guys than before (even though my bro-ness quotient was pretty high in my all-boys, rugby-playing high school). My clothes went from dandy to crappy. I still couldn’t give a shit about sports, but equally, I can’t bear being in a room where The Real Housewives of Beverly Hills is on the TV. All in all, after coming out, I found myself much less stricken between two polarities of what it means to be a man. I became much more comfortable in myself.

I wondered in the past what more social integration might do to the gay voice. Would it wane somewhat and eventually disappear? That’s the question I’d like to see addressed. If the gay voice is a function of the closet and of marginalization, would it have a harder time propagating in an era of much greater toleration and inclusion? My anecdotal evidence suggests something mixed. Yes, it is still there, but the extremes of either hyper-masculine presentation of hyper-feminine identity seem less extreme in the next generation. Here’s my ballsy guess: it’s a function in some ways of genetics but also the environment. Like every other fucking thing we humans do and are. But it’s fascinating to think of how specifically those two factors might interact, and what they may tell us about the paths for various homosexualities.

And by the way, do I sound gay?

The Slow And Agonizing Death Of Clayton Lockett, Ctd

As the rest of the Western world recoils in horror, Andrew Cohen sees the botched execution as a turning point:

This has exposed yet another instance where the “machinery of death,” to use Justice Harry Blackmun’s immortal phrase, is incapable of running with the sort of precision necessary to work a capital regime. What happened [Tuesday] night to Clayton Lockett surely won’t convince lawmakers in Oklahoma or Texas or Missouri or Louisiana or Alabama to end their experiment with the death penalty. But if what happened last night in Oklahoma doesn’t cause our nation’s judges to stop the cycle of secrecy over lethal injections, it will be a scandal.

Indeed, Lockett now is a symbol of feckless judicial review by the federal courts, including the United States Supreme Court. The justices in Washington have had countless opportunities in the past year to stop the madness caused by the current generation of lethal-injection secrecy. They long ago could have and should have accepted one of those cases for review to establish standards that would require states like Oklahoma to share basic information about the drugs used to kill prisoners. What happened to Clayton Lockett last night is on them, too.

Sam Kleiner also hopes the courts will take action:

Today, there are a number of cases progressing through the federal courts that are challenging the secrecy laws surrounding lethal injections. Ultimately, the courts and potentially the Supreme Court itself will have to determine whether such secrecy violates the Constitution. The Court held in 2002 that the ban on cruel and unusual punishment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” While there may be a legitimate interest in protecting the suppliers of these drugs, our interest in protecting the integrity of our society’s most severe punishment is far greater.

Lauren Galik reviews the series of events leading up to Lockett’s execution:

On April 21, the Oklahoma Supreme Court stayed the executions of Lockett and Warner, which were scheduled to take place on April 22 and April 29, so that the justices could evaluate the legality of Oklahoma’s secrecy law.

In an unprecedented move, Gov. Mary Fallin proclaimed on April 22 that Oklahoma’s executive branch would not honor the state Supreme Court’s stays of execution, and issued an executive order that granted a seven-day stay of execution for Clayton Lockett.

Even more shocking, a Republican state representative, Mike Christian, introduced impeachment proceedings on April 23 against the five state Oklahoma Supreme Court justices who had voted for the stays of execution, stating that the justices had used “unsupportable arguments regarding constitutional rights.”

On April 24, the Oklahoma Supreme Court caved to political pressure, and declared that the state’s injection secrecy law was constitutional, allowing the botched execution to proceed on April 29 as Governor Fallin ordered.

Lithwick’s reaction to the story:

The death penalty is still legal in America, and to the extent you want to debate that, you can and should. But torturing prisoners is not legal, and when state actors fall over one another to secretly experiment with new drugs, that’s just a sin. State courts tasked with being careful and deliberate shouldn’t cave to threats or blackmail. Bert Brandenburg, executive director of Justice at Stake, a nonpartisan campaign working to keep our courts fair and impartial, says the real lesson from Oklahoma Tuesday night is this: “Political tampering with the courts and bullying of judges fed a fever that resulted in a state torturing one of its prisoners to death.”

Beutler’s bottom line:

Even if you grant the assumption, which I don’t share, that an intentional, scheduled killing can be done in a non-torturous way, if something (i.e. intentional, scheduled killing) requires a zero percent error rate in order to not be torturous, probably you just shouldn’t do it. But you certainly shouldn’t be hungry to do it.

Though hardly hungry, Matt K. Lewis still supports the death penalty:

You really can’t take someone like Clayton Lockett and reform him — or, at least, the odds of doing so are unfathomable. This wasn’t a crime of passion. He didn’t walk into his house, see his wife in bed with another man, fly into a rage, kill him, and then immediately feel remorse. He shot a 19-year-old woman and then watched his friends bury her alive. Try to reform that.

… [A]s the son of a prison guard from Maryland, let me assure you: Inmates who have no hope of earning an early release also have no incentive not to harm or kill correctional officers or other inmates. And solitary confinement is arguably a crueler and more unusual form of a punishment than the death penalty. And there’s also this: While capital punishment may not be a deterrent (the infrequency of its use almost guarantees this), the recidivism rate is astonishingly low. I mean, there are very few repeat offenders.

So yes, we ought to make sure we get to the bottom of what went wrong with this lethal injection. But no, we shouldn’t do too much hand-wringing and pearl-clutching along the way. At the end of the day, the death penalty should be safe, legal, rare — and utterly efficient.

The White House Takes On College Rape

Obama’s special task force assigned to address sexual assault on campuses has released its first report (pdf), which includes recommendations for what colleges should do:

The report calls for prevention programs that “are sustained (not brief, one-shot educational programs), comprehensive, and address the root individual, relational and societal causes of sexual assault.” Bystander intervention is listed as a “promising prevention strateg[y].” The CDC is currently researching the best sexual violence prevention practices.

The Task Force recommends that schools train officials on how to best respond to sexual assault complaints, avoiding “insensitive or judgmental comments” that make the victim feel he or she is being blamed instead of the person accused. It also recommended that colleges do away with mandatory reporting policies that may make students hesitant to report assaults in the first place. Assault survivors should have a place to turn to where they know what they say will remain confidential unless they say otherwise. “This is, by far, the problem we heard most about,” the report says.

The PSA seen above was released with the report. Bazelon wants to know why it took so long:

The administration’s recommendations are generally to the good, and Congress should make them stick by enacting them into law. And yet, I have to pause to say that I can’t believe how long it has taken to put this issue at the front of the national agenda—and how toothless the laws written to protect students remain. This is a problem the White House recommendations don’t sufficiently address.

Title IX has been on the books since 1972. The Clery Act, which requires schools to disclose campus crime statistics, passed in 1990. In 2011, the Department of Education’s Office for Civil Rights, which is responsible for enforcing Title IX, sent schools a Dear Colleague letter emphasizing their responsibilities to provide an education free from sexual harassment and violence.  And yet today the talking point from Vice President Joe Biden is, “Colleges and universities need to face the facts about sexual assault. No more turning a blind eye or pretending it doesn’t exist.” Well, yes, but shouldn’t they have stopped turning a blind eye a long time ago?

Jessica Valenti criticizes the report for its omissions:

The White House report also doesn’t provide guidelines for how schools should discipline campus rapists. According to a 2010 investigative report from the Center of Public Integrity, American colleges almost never expel those found guilty of sexual assault in campus judiciary proceedings. “The fact that schools will expel someone for cheating on a test, but not for violating another human being and their dignity shows they don’t have their values in order,” says Wanjuki.

Instead, colleges often opt for “punishments” like asking a rapist to write a letter of apology to his or her victim or forcing the assailant to write a research paper about rape. And while these abusers remain on campus – likely to rape again – their victims are often harassed, stonewalled by administrators and/or end up leaving campus for fear of running into their attacker.

Greg Lukianoff, president of the Foundation for Individual Rights in Education, is concerned that the recommendations invite colleges to disregard due process:

Perhaps most worryingly, the Task Force appears to be enthusiastic about essentially eliminating hearings altogether for students accused of assault and harassment. The Task Force is exploring a “single investigator” model, where a sole administrator would be empowered to serve as detective, judge and jury, affording the accused no chance to challenge his or her accuser’s testimony. Tellingly, the Task Force expresses only the most meager sense of the rights necessary to secure fundamentally fair hearings, noting that it believes the single investigator model would still “safeguard[] an alleged perpetrator’s right to notice and to be heard.”

Meanwhile, Charlotte Alter explores college-aged men’s fears that they could be falsely accused of rape or commit it by accident:

The changing definition of “consent” fuels a lot of this anxiety. Ben Murrie, one of the producers of a traveling campus assault education program called Sex Signals, says his program defines consent as “present, active, ongoing, freely given, and sober,” in an attempt to move away from the old “no means no” idea of consent. But to a literal-minded college student, that means anyone who willingly has sex after a couple beers could be a rape victim, and anyone who doesn’t hear “please continue with intercourse” could be a rapist.

Update from a reader, who disagrees with Bazelon:

As a former lawyer for the Education Department’s Office for Civil Rights, I don’t think Title IX is “toothless”.  Moreover, civil-libertarians have objected to the Education Department’s recent guidance on campus sexual assault and harassment, as I discuss in the commentary further below.

Not only have people successfully sued for a million dollars or more under Title IX and its sister statute, Title VI (which deals with racial harassment), as in the Zeno case, but the Education Department’s Office for Civil Rights does in fact effectively impose sanctions on schools even when it doesn’t cut off their federal funds, since it sometimes conditions the end of the investigation on a resolution agreement that contains monetary compensation for victims.

For example, Tufts recently agreed to provide “monetary compensation” for a complainant, despite denying any wrongdoing, although it balked at an Education Department demand that it also declare itself in violation of Title IX: “Tufts signed an agreement with the government earlier this month, pledging to take a long list of steps in improving their policies, as well as providing monetary compensation to the student.”

Moreover, many seemingly-innocent students have been expelled or suspended based on meager evidence, as is evidenced by the cases cited on the web site of the Foundation for Individual Rights in Education, and in former Massachusetts ACLU leader Harvey Silverglate’s Wall Street Journal op-ed in discussing the Caleb Warner case. As I noted in the commentary below,  “For examples of seemingly-innocent students expelled or suspended from school based on very weak evidence, in the aftermath of the Education Department’s “Dear Colleague” letter, see here, here, here, here, here, here, and here.”

Unfortunately, the deck is usually stacked against the accused student.  School officials have every incentive to expel students if there is any chance they are guilty at all. A state university official who doesn’t kick out the accused can be individually sued under decisions like Murrell v. School District No. 1 and Fitzgerald v. Barnstable School Committee.  That’s in addition to the fact that the university itself can be sued under Title IX.  School officials can also be sued under state sexual harassment laws that reach further than Title IX, like New Jersey’s Law Against Discrimination, which provides for individual liability on the part of school officials, as well as liability based on constructive rather than actual notice.

By contrast, a school that expels an innocent accused probably can’t be sued, even if he is probably innocent, since the accused only has a right to PROCEDURAL due process, not any SUBSTANTIVE finding of guilt or innocence.  So as long as the school goes through the motions of giving the accused a fair hearing, and follows its procedures, it can kick him out even if he is probably not guilty.