An Open Letter to Governor Rick Scott

I see that you and Governor Crist are both running ads about your former legal problems with Medicare fraud.  As a voter, I did not hold that against you four years ago.  I figured that it was unfair to judge you for something that happened a long time ago without looking at what you’ve done in the meantime.

This year, however, is a different story.  This year, I’m inclined to hold it against you and refuse to vote for you specifically because of it.  And I thought it only fair to write and tell you why.

People make mistakes and should be permitted to make a fresh start, but on the condition that they cut other people who make mistakes the same slack.  That is the whole point of Matthew 7:2, which says that you will be held accountable to the same standard to which you hold other people.  And throughout your administration, you have refused to show the same grace and compassion to other people who have made mistakes that was shown to you.

One of your first acts after taking office was to lengthen the time that felons have to wait before they can petition to have their civil rights restored.  We both know that the only reason you’re not a convicted felon is that you had a lot of money to pay some very good lawyers to keep you out of jail.  It would be really nice if you could understand that people who didn’t have the money to avoid the legal consequences of their actions might like a fresh start too, and to give them a speedy opportunity to demonstrate that they, too, deserve a second chance.

 You have opposed restoring the right to vote to felons who have served their sentences, even though giving them a stake in their communities is far more likely to help make them productive citizens than making them pariahs will.  You have supported increasing the misery level for convicted sex offenders even though our ridiculously broad definition of sex offender sweeps up many people who pose no real threat to anyone else.  And you have signed death warrants at an even faster rate than your predecessor did.

 All of these show a common theme:  Everyone except you who screws up is not to be given a second chance, is not to be shown compassion, is not to be permitted a second chance.

 And if that’s your belief – that people who make mistakes don’t deserve second chances – then that’s fine, but that standard then has to apply to you as well.

 So, because of your history of Medicare fraud, I will not be voting for you.  Ever.

A fool's errand

It's a nice thought that people are fair and reasonable, and that disputes can be worked out by sitting down and working out one's differences.  A nice thought, that is, until one realizes that sometimes people aren't reasonable and they demand things that just aren't possible.  Such is the case in the Middle East.

On the one side, the Jews, on religious grounds, are claiming a right not just to be in the Middle East, but to a very specific piece of real estate in the Middle East.  God gave them to it, and that, to their mind settles it.

On the other side, the Arabs don't want any Jews in Palestine at all.

After a few minute of thinking this through, one realizes that it is impossible for both sides to get what they want.  Making one side happy requires making the other side very unhappy indeed.  Further, these demands are central, core demands that neither side considers to be negotiable.

That's why American attempts to bring peace to the Middle East are largely a fool's errand.  There will be no peace in the Middle East until one side or the other loses.  And there's not much America can do about it.

Oh wait, there is one thing America can do about it:  Quit pretending it's our fight.  After trillions of dollar, after spilling hundreds of barrels of American blood, we have nothing to show for it except the enmity and hatred of large numbers of people in the Middle East.  We need to get out of the Middle East.  We need to get out of the Middle East now.  And we need to let them sort it out themselves.

We should have a contest

Whenever I think that some government employee has behaved so badly that no other government employee could possibly top them, another government employee comes along to prove me wrong.  Maybe we should have a contest for the most over-the-top vile behavior by an agent of the state.

Curtis Scherr is a Chicago police officer.  His 7-year-old granddaughter was dying of a brain tumor.  There was some reason to think that medical marijuana might be therapeutic, at least to the point of easing her pain.  So her mother, Scherr's daughter-in-law, began growing marijuana, from which she extracted cannabis oil, which did seem to alleviate some of the symptoms.

Scherr helped.  He helped her obtain the high-intensity lightbulbs necessary for growing pot indoors, and coached her on how to avoid detection by the police.  He helped tend the plants.  Unfortunately, Liza died.

A dispute broke out between Scherr and his daughter-in-law.  Scherr was Catholic; his daughter in law was Protestant, and Scherr was upset that it would not be a Catholic service.  He was also upset that his daughter in law omitted some relatives from the obituary, and even more upset that he was not permitted to take Liza's ashes from the funeral home.

Now, in most families, these disputes would resolve themselves in one of two ways.  Either people would work through them, or they would go their separate ways.  But Scherr was a police officer, and nobody, dammit, was going to tell him no.  So, he retaliated.

Officer Scherr, who himself had helped grow the marijuana, swore out a search warrant for his daughter in law's residence, claiming that he had seen 50 marijuana plants inside.  The judge issued a search warrant and, four days after the funeral, a dozen DEA agents descended on the house in search of drugs.  They didn't find any; since Liza's mother is neither a drug dealer nor a drug user, she discarded the marijuana plants when Liza died.  They did, however, cause intense grief and emotional upset to a bereaved mother who had buried her child only four days earlier.  No charges were filed.

Liza's mother sued Scherr.  The trial court dismissed the lawsuit, and earlier this week the US Court of Appeals upheld the dismissal.  You can read the decision here:  http://scholar.google.com/scholar_case?case=2670780480031368207  In a nutshell, under federal law, a police officer cannot be sued for having an ill motive so long as there really was probable cause to get a search warrant.  As a matter of law, I think that's right.  I don't have to like it.  She still has some state-court remedies she may pursue.  I wish her luck.

If I were the United States Attorney for the Northern District of Illinois, I would give her immunity from prosecution.  I would then get her to tell a grand jury that he helped with the grow operation, and I would then indict him on drug charges.  Even though I'm opposed to the war on drugs and normally disfavor prosecuting people for drugs, since he's the one who brought in the criminal justice system in the first place, let him answer for his role in the illegal activity.  And if I were the sentencing judge, I'd give him ten years.

Anyone who acts that despicably should share in the misery.

Of this we're very sure

I just finished an interesting column by a theologian I almost never agree with who was castigating his fellow conservatives for projecting milquetoast rather than certainty on controversial issues.  The example he gave is as follows:

"If some Christian is on television and is asked the baiting question as to whether homosexual practice is a sin, he will reply (if he is trying to hold the line in any fashion) that “yes, it is a sin, but all of us are sinners, and God makes no distinction between sins, and I myself am a sinner, and have sinned just this week in ways that are every bit as bad. And it’s only Monday.” What he ought to say is “yes, it is a sin. A very bad one. Kind of gross, if you think about it.”

"Now if he goes the former route, what is he trying to avoid? It is not the identification of homosexual sin as “sin.” He does that. What he is trying to avoid is his own sin, the “sin” of certainty, the sin of confidence, the sin of dogmatic pronouncement. The sin of acting as though God has spoken."

You can read the whole column here:  http://dougwils.com/s7-engaging-the-culture/with-commentary-by-rabshekah.html

Please allow me to suggest that that is not the dynamic at work at all.  Not even close.  And it requires a certain amount of disingenuousness to suggest that what's going on is avoidance of dogmatism.

Most people want to be thought of as fair people who treat other people well.  True, there are some people who really do take pleasure in being scoundrels, but I think most people prefer being virtuous to being scurrilous.  And most people understand virtue to include treating other people they way that they would like to be treated.

One of the reasons for the sea change in public attitudes toward gay marriage in a relatively brief period of time was the realization that depriving people in a stable, long-term committed relationship the ability to obtain legal protection for that relationship was not treating people fairly.  Dumping all over people because of their sexual orientation is not behaving charitably.  Suggesting that people whose only real difference from everyone else is the gender of the person they choose to spend their lives with are beyond the equal protection of the law and the respect of their neighbors finally struck people as not being compatible with the American ideal of fair play for all.  And once people actually started thinking through just how unjust anti-gay prejudice is, it became harder and harder to make the case that the law should treat them differently.

And I think that when someone argues for anti-gay prejudice, deep down inside that person knows that he is doing something shameful.  Even if he doesn't think he is doing something shameful, he knows that the culture has shifted and a significant number of his friends, neighbors and relatives will think it's shameful.  And that's why these days there aren't nearly as many people willing to say, "Yes, it's a sin, a very bad one, and it's gross and disgusting too."  What's gross and disgusting is treating people like second class citizens because of the objects of their affection.

The First Amendment Has Two Religion Clauses

I've now read the Hobby Lobby decision.  I was prepared to hate it.  I now merely find it unpersuasive.  Alito did a much better job of defending his position than I expected him to (and I actually expected Scalia to be the one writing the opinion).  At the end of the day, though, there's a major policy problem that the Court did not address, that needs to be addressed.

The First Amendment contains two religion clauses:  Congress shall make no law respecting an establishment of religion (the Establishment Clause), nor prohibit the free exercise thereof (the Free Exercise Clause).  Neither exists in a vacuum; they have to be read side by side.  Simply put, the first clause means the government can't give religion special favors and the second clause means the government can't give it special burdens.  It may neither treat religion favorably nor unfavorably.  Religion is a private matter, and religious belief should not result in either good treatment or bad treatment from the state.  The state is supposed to stay neutral on the subject.

I have enough libertarian instincts that I'm not entirely opposed, depending on the circumstances, to allowing people to have conscience exemptions from some laws at least some of the time.  But if the government is going to give conscience exemptions, it has to do so in an even-handed manner.  It shouldn't be giving them to religion but not to the non-religious.

Suppose an atheist starts a business.  Neither he nor his business will be entitled to any conscience exemption to any law that he finds morally objectionable.  It does not matter how deeply offensive and repulsive he may find a law to be, or how good a moral argument he can muster against it.  His conscience doesn't get him any favorable treatment.  He has to obey the law or face the consequences.

But let him come along and say that he has an objection based on a conversation he had with a ghost, and suddenly his objection becomes religious and gets all kinds of special treatment.

Now, I hasten to add that there are perfectly sound policy reasons not to give anyone a conscience exemption, because once that starts, anyone who doesn't want to pay taxes, or hire blacks, or refrain from sexually abusing children discovers some religious hook or other on which to hang his objections.  If I can ignore the speed limit just because my religion tells me to, then it won't take much for me to find a religious argument that I'm supposed to drive 90 miles an hour down I-90.

But if the government is going to start giving conscience exemptions, then it needs to play fair. Secular consciences are entitled to as much respect as religious ones.

Elections matter

I periodically hear the argument that the two major political parties are the same and it doesn't matter which one of them wins.  That argument has been around a while, back in 1968, George Wallace said there wasn't a dime's worth of difference between the major parties.

Today, the Supreme Court handed down two major decisions, both on 5-4 votes.  In one of them, they held that closely-held corporations with a religious objection to contraception can't be forced to purchase health insurance for their implies that includes contraception.  In another, they held that quasi-public employees can't be forced to join a union.  In both cases, the 5-4 split had all the Republicans on one side and all the Democrats on the other.

Without getting into the merits of either decision (neither of which I've finished reading yet), let me just say that if the two seats now held by Roberts and Alito (both George W. Bush appointees) had instead been filled by John Kerry, had Kerry won the 2004 election, both of these decisions would have come out differently.

So whether you like these decisions or hate them, elections do matter.

Just when you think they can't top themselves

One of the most important distinctions in constitutional law is between state actors (people who work for the government) and non-state actors (people who don't).  As a general rule, constitutional rights only apply to things done by the government.  The government cannot lock you up or fine you for exercising your First Amendment right to free speech, but your employer may still be able to fire you for it, assuming your employer isn't the government.  That is also true of many statutory rights; the Freedom of Information Act allows me to get records from the Pentagon but it does not allow me access to records from IBM or General Motors.  Put another way, you've got far more rights against the government than you do against most private parties.

Which explains why several Massachusetts police departments decided to incorporate as a private corporation.  The ACLU filed a lawsuit against various Massachusetts police organizations to obtain records relating to their SWAT teams -- how those people dressed like ninjas and armed like Taliban fighters who kick in people's doors, shoot their pets, throw everyone to the ground, point guns at peoples' heads and threaten to shoot them if they move, are selected, trained, and what rules they operate under.  Given the incredible amount of deadly firepower with which such teams are entrusted, one might think that the citizenry is entitled to know what kind of training they have and what their rules and regulations consist of.

But guess what -- private corporations aren't bound by public records laws, and aren't required to provide any such information to the public.  Hence the strategy of having the police departments become private corporations.

I certainly hope the courts don't allow this shenanigan to stand, though these days my faith in the courts' willingness to rein in police abuses is not high.  Post-9/11, the courts seem increasingly willing to give the police whatever they want.  It's a fairly blatant show of contempt for the citizens in whose name the police operate, breathtaking even by law enforcement standards.

That aside, this raises a number of interesting questions.  Because while it is true that government actors have to respect individual rights that private actors don't, it is also true that government actors get to do things that private actors don't.  For example:

If a group of heavily armed employees of a private corporation are coming through my front door, I have the right to shoot them in self defense, assuming I have enough firepower of my own.  Does this mean that police executing search warrants are now fair game for homeowners with guns?

If an employee of a private corporation locked me in a cell overnight, telling me I am not free to leave, I would have an excellent lawsuit for false imprisonment and possibly even kidnapping.  Does this mean that a police officer making an arrest can now be sued for false imprisonment?

When someone files a lawsuit claiming that a government employee -- often a police officer -- has violated that someone's legal rights, state actors are entitled to something called "qualified immunity", which means that making a lawsuit against the police stick is really, really hard and only rarely succeeds.  Have Massachusetts police officers now lost qualified immunity if they get sued?

Assuming the Massachusetts courts don't nip this private corporation nonsense in the bud, I sense a series of very interesting lawsuits about to be filed.