Law & Law Enforcement

Morning Ethics Warm-Up, 7/2/2018: Bad Neighbors And Bad Journalism

/ Jack Marshall / 44 Comments

Good Morning…

1. Ah, now THAT’S the ol’ Spirit of 1776!  In a subdivision near Sterling Heights in Chesterfield, Michigan,  a resident sent an anonymous letter to other residents, threatening  to take dire measures against them if they set off fireworks after 9 PM  this week. Here’s the letter…

Yikes.

I’m presuming that the real spirit of 1776 still breathes deeply in this nation, and that the reaction of the recipients of that letter will be to make certain that the noisiest fireworks possible are exploding every second during the time they are permitted to be by law, from the start of the week to the end. The neighbor is a coward, a jerk and a bully, and his bluff must be called as a matter of justice and honor. (Pointer: HLN)

2. Nah, the mainstream news media isn’t biased! In an absolutely correct and justified editorial note, Fox News’ Chris Wallace excoriated media outlets on “Fox News Sunday” for attempting to connect President Donald Trump to the newsroom shooting at Capital Gazette in Maryland. (This will, of course, be called an example of Fox News pro-Trump toadying by those same media outlets.) This was indeed one of the most transparent recent episodes of fake news peddling by CNN, Reuters and others in the mainstream media, who worked hard to make the case that the killer of five was motivated by the President’s repeated accusation that the media is “the enemy of the people.” We now know that the shooter swore that he would kill the Capital Gazette writer whom he targeted in the attack years ago, when everyone assumed that Hillary was going to be the next President. Continue reading →

Sunday Ethics Warm-Up, “Welcome July And Hope It’s Better Than June” Edition [UPDATED]

/ Jack Marshall / 27 Comments

Happy July!

(On an especially dead weekend on Ethics Alarms. But ethics never sleeps…)

1. But I thought everyone wants open borders! The Harvard-Harris poll on illegal immigration, North Korea, trade and tariffs, and the Russia investigation certainly isn’t reflected in the news reports. But then, we can’t trust polls, and we certainly can’t trust Harvard.

I suppose the theory behind yesterday’s protests is that the squeaky, angry wheel gets the insane national policy. My guess is that this particularly squeaky, angry wheel  gets a Republican Congress.

2. Nah, there’s no mainstream media bias! (Cont.)  Yesterday’s New York Times op-ed page managed to contain two of the more outrageous anti-Trump screed of recent vintage. One, by Dave Eggers, attacks “the cultural vacuum in the White House.” I suggest reading this one as a template for anti-Trump propaganda, and the kind of dishonesty underlying so much of it.  He begins,

Since his inauguration in January 2017, there have been no official concerts at the White House (the Reagans had one every few weeks). No poetry readings (the Obamas regularly celebrated young poets). The Carters began a televised series, “In Performance at the White House,” which last aired in 2016, where artists as varied as Mikhail Baryshnikov and Patricia McBride performed in the East Room. The Clintons continued the series with Aretha Franklin and B. B. King, Alison Krauss and Linda Ronstadt.

But aside from occasional performances by “The President’s Own” United States Marine Band, the White House is now virtually free of music. Never have we had a president not just indifferent to the arts, but actively oppositional to artists. Mr. Trump disparaged the play “Hamilton” and a few weeks later attacked Meryl Streep.

Normally, this is where I’d quit reading—when the writer deliberately distorts the facts and employs deceit to make his case. The President disparaged the cast of “Hamilton,” not the show itself, after its performers unethically ambushed Vice President Mike Pence, who was then only another audience member, and should have been respected as one. I have launched (let’s see) three theater companies and two professional performing groups, and I disparaged that cast as well. Meryl Streep, the well-known pal of Harvey Weinstien, went on national television and gratuitously insulted the President, who does not turn the other cheek. He didn’t  attack Streep because she is an artist. He attacked her for being a grandstanding partisan shill.

He engages in this kind of deceit throughout, such as when he writes, in conclusion,

“Admittedly, at a time when Mr. Trump’s policies have forcibly separated children from their asylum-seeking parents — taking the most vulnerable children from the most vulnerable adults — the White House’s attitude toward the arts seems relatively unimportant. But with art comes empathy. It allows us to look through someone else’s eyes and know their strivings and struggles. It expands the moral imagination and makes it impossible to accept the dehumanization of others. When we are without art, we are a diminished people — myopic, unlearned and cruel.”

Funny: art hasn’t made Eggers less dishonest and deceitful. The illegal immigrants at the border were not “asylum-seeking,” because they didn’t follow the procedures for seeking asylum. They were apprehended foreign citizens trying to sneak into our country and claiming that they were seeking asylum to hamstring border enforcement,  and were using their children as human shields, placing the Trump administration into the Catch-22 of either waiving the laws or giving open-borders activists a club to beat it with—as the Times knows, since it has explained this dilemma itself. To attribute  pure law enforcement decisions to the dearth of piano and cello concerts in the White House is forced even by the Times’ standards. Mostly Eggers is just revealing the classist snobbery underlying much of the elitist attacks on President Trump.

As an artist, and someone who has worked in the arts and indeed would have made it my career if it were financially feasible, I could not care less how many concerts a President hosts, or how many artists he fetes. I want him to do his job, and I don’t particularly care to be paying for his glitterati  nights, either.

A President’s taste in art and culture doesn’t affect the public one whit. I don’t think I would pay a dime to hear any of President Obama’s hip-hop artists or rappers. Meanwhile, Clinton having “Aretha Franklin and B. B. King, Alison Krauss and Linda Ronstadt” at the White House didn’t make him empathetic enough not to exploit Monica Lewinsky. Jack Kennedy was a  stone-cold sociopath: what did he learn from dining with “Arthur Miller, Tennessee Williams, Robert Lowell, Geraldine Page and George Balanchine”?

Hitler loved fine culture so much he had his Nazis steal thousands upon thousands of invaluable works of art across Europe, because he wanted a new explosion of creativity among the German people. Boy, if that made the Germans less “cruel,” imagine what they might have been like without their art!

And Nixon played the piano! Continue reading →

Oh-Oh… I May Be Mellowing: I’m Not As Keen On The Felony Murder Rule As I Once Was

/ Jack Marshall / 16 Comments

The New York Times recently had a story about the latest state, California, considering abolishing the felony murder rule, the tough American principle that if you participate in a felony and someone is killed, you can be tried for first degree murder even if you didn’t directly cause the death. Writing about the rule in 2014 as it  applied in a particularly odd case, I wrote,

I sort of like it, and always have. Like all laws, however, it doesn’t work perfectly all the time.

The reason I like the rule is that it acknowledges the real danger of initiating felonies, crimes that are serious and destructive. If you burn a business down to collect the insurance, for example, you should be held responsible by the law if the fire gets out of control and someone is killed. The law combines criminal and civil offenses; the felony murder rule is like a negligent crime principle. It is a law that implicitly understands Chaos Theory at a basic level: actions often have unpredictable consequences, and even if the consequences are worse than you expected or could have expected, you still are accountable for putting dangerous and perhaps deadly forces in motion. If you commit a felony, you better make damn sure you know what you are doing, because if people get killed,  you will be held to a doubly harsh standard. Better yet, don’t commit the crime.

Don’t commit the crime. I have this reaction to all complaints about harsh sentences when the individual complaining (or having an advocate complain on his behalf) is guilty of the crime involved…You knew the risk, and you get no sympathy from me. The same applies to felony murder. The felon rolled the dice, and lost. (Somebody else lost too: the victim who was killed.) Nobody made him (or her) roll.

The potential California reform would change state law so that only someone who actually killed, intended to kill or acted as a major player with “reckless indifference to human life” could face murder charges. That would avoid seemingly harsh sentences in cases like the one the Time story focuses on, in which Shawn Khalifa, 15 at the times, served as a look-out while some teenage friends broke into an elderly neighbor’s house in the  California town of Perris, looking for cash. The elderly homeowner was injured in the burglary and eventually died.  A jury convicted the teenager of first-degree murder under the felony murder rule, and he is serving a sentence of 25 years to life. I am tempted to support the California  measure, which would avoid Khalifa’s kind of sentence while keeping the possibility of a felony murder charge when the culpability is more than just moral luck. Continue reading →

Thanks To The Widespread Absence Of Competence, Honesty, Integrity And Trustworthiness, I Have No Idea What This Story Really Means, If Anything

/ Jack Marshall / 21 Comments

The Hill tells me that Democratic pollster Mark Penn claims that a vast majority of Americans don’t really support sanctuary cities. The one-time chief strategist for Hillary Clinton‘s 2008 presidential campaign says that a poll he took revealed that 84 percent of Americans favor turning undocumented immigrants over to federal agents.

“I asked them, ‘Do you think notifying ICE [Immigration and Customs Enforcement] would in fact increase crime because it would inhibit people from reporting crimes or does it decrease crimes because it takes criminals off the street,’ and they overwhelming said ‘decrease,’ ” Penn told Hill.TV’s “Rising.” “When someone’s arrested, they expect someone will notify federal immigration authorities just as they would expect someone who violates state tax law will find out that they notified the IRS,” the pollster said. This is supposedly summed up by The Hill’s headline, “Ex-Clinton aide: 84 percent of Americans support turning undocumented immigrants over to authorities.”
Continue reading →

Morning Ethics Warm-Up, 6/28/2018: The Post-Kennedy Retirement Announcement Freak-Out

/ Jack Marshall / 78 Comments

Good Morning!

1. How prescient of me to headline yesterday’s warm-up “Deranged” before Justice Kennedy announced his retirement and the progressive/Democratic/ mainstream media/social media freakout commenced!

2. Duh. Since nobody seems to be writing about how perfectly this proves the Trump-inflicted brain damage on the Left, allow me:

  • Justice Kennedy is 81. As my dad used to say when he entered his 8th decade, he’s in the red zone, and can drop dead at any second. Did Democrats really assume he would keep working forever?

Their shock at this is ridiculous and unbelievable. WHAT? An 81-year-old judge is retiring?

  • This is a wonderful example of how people assume that everyone else thinks as they do. The Trump-Deranged have reached the point where they would saw their pets in half to undermine the President, so they assume that Kennedy feels the same way.

There is no evidence that he does, in part because, unlike Ruth Bader Ginsberg, who has periodically trumpeted her contempt for the President, he has been judicially discrete and professional.

  • It is per se irresponsible for an 81-year-old in a challenging job with national impact not to step down before he or she becomes incompetent, or drops dead. Scalia was irresponsible not to retire. Ginsberg should retire (she is 84). Breyer is two months short of 80: he should retire.

Outside of judges, we have multiple members of Congress, notably Pelosi and John McCain, who are being unethical by not stepping aside.

  • The bottom line is that nobody should be freaking out, because everyone should have been prepared for it.

3. We get it! You are vicious, juvenile, angry, rigis and irrational people. The Daily News nicely sums up the calm, analytical, reasoned reaction by the Left:

Continue reading →

Morning Ethics Warm-Up, 6/27/2018: Unhinged

/ Jack Marshall / 129 Comments

Good Morning.

1. Nah, there’s no mainstream media bias…This is one of the times that I am sorry that the Trump Deranged on Ethics Alarms have temporarily withdrawn from the Comment section battles, as I would love to hear their self-indicting rationalizations.

Here was this morning’s New York Times, big black headline:

JUSTICES  BACK TRAVEL BAN, YIELDING TO TRUMP

Outrageous in every way. The Court did not “yield” to anyone or anything but the law as it stands and has stood for centuries. As Constitutional Law expert Eugene Volokh succinctly put it, “The federal government may pick and choose which foreigners to let into the country (at least setting aside foreigners who have are already been granted residence), even based on factors — political beliefs, religion, and likely race and sex — that would normally be unconstitutional.” He explains:

This used to be called the “plenary power” doctrine, referring to the principle that the government has essentially unlimited power when it comes to at least this aspect of immigration law, unlimited even by the Bill of Rights. It is not based on the constitutional text; textually, the First Amendment would apply to all exercise of Congressional authority, whether under the Commerce Clause or the District of Columbia Clause or the Necessary and Proper Clause under Congress’s power over immigration. But, right or wrong, it is based on longstanding American legal history; and the majority adheres to that history.

Historically, this has even be used to authorize Congress to discriminate based on race (query whether the Court would today condemn this as “irrational”; more on that below). It has long been seen as authorizing Congress to discriminate based on country of citizenship, without investigation into whether such discrimination might actually be motivated by ethnic hostility. And, most relevant to today’s decision, it was seen in Kleindienst v. Mandel (1972) as authorizing discrimination based on political ideology, which would otherwise be forbidden by the First Amendment….The Court rejected the First Amendment claim:

Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case (1889), and in Fong Yue Ting v. United States (1893), held broadly, as the Government describes it, that the power to exclude aliens is “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government ….” Since that time, the Court’s general reaffirmations of this principle have been legion. The Court without exception has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. Immigration and Naturalization Service (1967). “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Oceanic Navigation Co. v. Stranahan (1909)….

As a result, the Court held that, if decisions to exclude aliens could ever be set aside, this would be so only if there was no “facially legitimate and bona fide” reason to exclude the alien. In Mandel’s case, the dissent noted, those reasons — labeled by the government as Mandel’s “flagrant abuses” during his past visits to the U.S. — “appear merely to have been his speaking at more universities than his visa application indicated.” The dissent argued that “It would be difficult to invent a more trivial reason for denying the academic community the chance to exchange views with an internationally respected scholar.” But the Court didn’t investigate whether the government’s true motive might have been the Administration’s disapproval of Mandel’s political ideas, rather than the supposed violation of past visa conditions; the requirement of a “bona fide” reason did not appear to require an investigation into the government’s true motivations, but rather simply focused on whether the “facial[]” reasons seemed sufficient:

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [the provision involved in Mandel], Congress has delegated conditional exercise of this power to the Executive.

We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

The majority’s decision in Trump v. Hawaii basically applied this logic to another clause of the First Amendment — here, the Establishment Clause (which normally bars discrimination based on religious denomination, including the use of neutral rules in a discriminatorily motivated way) rather than the Free Speech Clause….

Continue reading →

Regarding National Institute for Life Advocates (NIFLA) v. Becerra

/ Jack Marshall / 35 Comments

The Supreme Court ruled today that California could not require that pregnancy resource centers (PRCs) promote abortion services on their premises. The  law doing so, the 5-4 majority held, is forced speech. (A law couldn’t make the PRC’s bake cakes saying “YAY ABORTION!” either, presumably.)

The ruling in National Institute for Life Advocates (NIFLA) v. Becerra holds that by imposing the law, California created “an unduly burdensome disclosure requirement that will chill [PRCs’] protected speech.”

 California’s 2015 Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act mandated that any facility that provides care to pregnant women must post this notice:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].

Fines for violating the law were $500 for the first offense after 30 days, and $1,000 for each subsequent offense.

 Justice Clarence Thomas, writing for majority, concluded that the requirement “alters the content” of the licensed centers’ speech by requiring them to notify pregnant women about the availability of low- or no-cost abortions even though the centers’ goal is to persuade women not to have abortions at all. This could be justified by a “compelling interest,” Thomas wrote, but he noted that there are other ways —an advertising campaign or posting notices on public property near the licensed centers—that would not force the centers to promote the very activity that they exist to stop.

Writes at Amy Howe at SCOTUSblog regarding the law’s application to unlicensed centers: Continue reading →

The SCOTUS Ruling In Trump v. Hawaii [UPDATED]

/ Jack Marshall / 30 Comments

The Supreme Court properly and ethically  killed the burgeoning liberal judicial theory that different Presidents have different restrictions on how they can exercise established Presidential powers. The majority in in the just announced decision in Trump v. Hawaii conclusively struck down a Hawaii judge’s ruling that Trump’s hostile comments about Muslims on the campaign trail rendered his travel restrictions unconstitutional, while a similar measure ordered by a nice President for the right intuited reasons would be presumably acceptable. This seemingly partisan ruling required substituting mind-reading for the President’s stated reasons for the Executive Order, and would have established a terrible precedent in a number of areas.

Sadly, this was another 5-4 ruling where the Court seemed to divide along ideological lines. However, since it seems clear that the five conservatives would have ruled the same way no matter which party’s President had issued the order, while the liberal bloc was indulging “the resistance” with a “Trump is special” approach, only one side of the political divide appears to have left integrity and and objectivity in their spare robes. Many, many commentators around the web have noted that this should have been a 9-0 decision, and that the political bias of the Hawaii decision was flagrant from the start. I agree. The President’s authority in this area is clear and unambiguous.

Writing for the majority, Chief Justice John Roberts wrote that the government “has set forth a sufficient national security justification” for its action. “We express no view on the soundness of the policy,” Roberts added.

More, from the holding: Continue reading →

Sunday Morning Ethics Warm-Up, 6/24/18: Potpourri!

/ Jack Marshall / 11 Comments

Good Morning!

Once again, I am prepping for a law firm training session (at 9 am!), and am rushing to get as much covered as I can.

1 More on how sports commentators make us stupid. I happened to be listening to the Sirius-XM MLB channel, as old Red Sox third-baseman Rico Petrocelli was holding forth on the luck factor in baseball. “I mean,” opined Rico,” a single missed strike or ball call by an umpire can change games, championships, seasons and careers! A single missed pitch by an umpire!”

Then he and his partner on the show noted that there have even been calls for balls and strikes to be called electronically, which, as I have pointed out here, is now completely feasible. “Ridiculous!” spat Rico, as his sidekick vigorously agreed.

Let me get this straight: he just (correctly) talked about how a single mistaken call can have momentous consequences, but says it’s ridiculous to eliminate mistaken calls when the technology is available to do so.

That’s even less logical than the defenses of illegal immigration. Continue reading →

Saturday Afternoon Ethics, 6/23/18: Pondering Pandering And Zugswang By The Sea

/ Jack Marshall / 19 Comments

Good afternoon.

It’s a good thing that I don’t pay myself anything for this, because I’d have to fire myself. Thanks to a full fledged computer crash at 6 am., all of my plans this morning to get a post up, get my notebook organized for tomorrow’s ethics training, and complete the outline for my Smithsonian Associates program on the influence of Gilbert and Sullivan on 21st Century America week from today before I had to fly to Tampa were as dust in the wind. This is especially bad for Ethics Alarms, as the blog gets virtually no traffic after noon on Saturday, no matter what I write about.

So here I am at the Wyndham Grand on Clearwater Beach—the sun is shining, the ocean is gleaming, and the pool, music, bar and beautiful women are right below my balcony—and what’s the first thing I do? This.

1 Ethics Zugswang and the illegal immigrant kids. The news media is now telling us that the President’s executive order creates an inherent conflict if he is serious about “no-tolerance” immigration violation enforcement. Yes, we knew that, or at least the people who didn’t blind themselves, Oedipus-like, rending their garments over “Think of the Children!” mania knew it. See, it goes like this:

A. Entering the country illegally is a crime.

B. People who commit crimes are supposed to be arrested, or more such people will commit those crimes.

C. Illegal immigration is a federal crime.

D. Children who accompany their parents while committing federal crimes cannot, by law, be  imprisoned with their parents.

E. They also cannot be held at all for more than a proscribed time, which is too short a period to process their law-breaking parents.

F. If the children have to be returned to their parents,, then the parents cannot be punished for breaking immigration laws.

G. If the children are separated from their parents, the government officials doing so are evildoers who must be shamed, excoriated and condemned.

F. Thus government officials are supposed to ignore the law, by the principle that Children Invalidate Laws, which they didn’t teach me in my college government classes or in law school but apparently that’s a rule.

G. But government officials are sworn to uphold and enforce the law.

Ethics Zugswang.

This Gordian Knot requires some distortion and deceit to stay tied, however…

One: “No-tolerance” is being used by the media to make “enforcing the law when people break it” sound like the equivalent of a school suspending a student for making his fingers look like a gun. Law enforcement is not supposed to “tolerate” crime and law-breaking. Illegal immigration is a serious breach of law, and what the news media is calling “no-tolerance” is really just enforcement.

Two: The Obama Administration opted for “catch and release,” which can be fairly described as “pretending to enforce the law, but not really doing it.” It was a dishonest, cynical, incompetent and unethical policy.

Three: There is no justification for treating the children of illegal immigrants differently from the children of citizens who are arrested and who have no one to care for their kids.

Four: The principle being advocated by the hysterical critics of the “separation of families” at the border (the accurate description is “the arrest of illegal border-crossers) is, now correct me if I’m wrong, “If a child or children accompanies a parent when the parent is apprehended while trying to violate a law carrying a substantial penalty, that parent will be treated with more leniency than if a child did not accompany him or her.” My puzzlement arises from this conundrum: Why do only law-breaking non-citizens get this benefit? Why don’t we “catch and release” good old American single parent bank robbers and burglars who bring their toddlers along as a “Get out of Jail ” card?

Five: What’s the difference? Here’s the difference: the progressive ghetto of our culture has adopted the convenient fiction that illegal immigration isn’t a crime at all, and illegal immigrants are heroes, or martyrs, or potential Elizabeth Warren voters, or something, but certainly they aren’t doing anything wrong. It’s an act of love (said Jeb Bush, proving that he had  squishy soft nougat center). Then why do we have a law against it, Jeb, et al.? Oh, because you can’t have open borders, that would be ridiculous and irresponsible. History shows us that. A nation most protect its borders!

Ethics Zugswang.

It is not ethics zugswang, though. It may be political zugswang because of the greed, dishonesty, emotionalism, and rationalizations driving this issue (in addition to its usefulness as another excuse to undermine this particular President), but the ethics are clear:

—The government’s primary duty is to enforce the laws.

—The integrity of national borders must be ensured using laws.

—The illegal border-crossers are breaking the law.

—They should be punished exactly the same regardless of whether they have brought children along or not.

—The responsibility for placing the children in this position belongs to the parents, and only the parents.

—Making the fate of the children the primary focus of any portion of the illegal immigration debate is intellectually dishonest, manipulative, and unethical, or, at best, innocently ignorant and emotional. Continue reading →