Justice vs. Process: The Case Of The Final, Mandatory, Unjust Sentence

African American in Prison

A full panel of the U.S. Court of Appeals for the 4th Circuit, fifteen judges in all, heard arguments this week  regarding whether they have the power to do anything about Raymond Surratt Jr.’s mandatory life sentence, which just about everybody—-the sentencing judge, Surratt’s defense lawyers and government prosecutors—agrees is unjust.

Until the Surratt case, no federal appellate court has faced the question of  whether a court it has a route to correcting a mistake of its own making when the error is as severe as a mandatory life sentence. The North Carolina father of two is incarcerated at a federal facility in Virginia for a 2005 cocaine conviction. If Surratt were sentenced today, he would face a mandatory minimum penalty of only ten years in prison. If he had been sentenced under current laws in 2005 rather than the laws then in effect, he would be out of jail by now.

Surratt pleaded guilty in 2005 to conspiring to distribute at least 50 grams of cocaine in western North Carolina. The judge said he had no choice under sentencing guidelines other than  to give him a mandatory life sentence because of Surratt’s earlier drug convictions. The judge called the penalty “undeserved and unjust.”

The conviction and sentence were upheld after Surratt’s  appeals. Now he has no appeals left. But in 2011, the 4th Circuit, which includes North Carolina, overruled past practice, meaning that it held that prior convictions as in Surratt’s case should not trigger a mandatory life term.

Now, I know that non-lawyers react to this by thinking, “So what’s the problem? Let him out!” That’s in line with the reaction they have when they hear about a defense lawyer who knows his mad-dog killer defendant is guilty of a heinous, bloody crime (“So tell the judge!”). However, the law can’t be changed on the fly, and the fact that a result may be obviously wrong doesn’t change the importance of addressing it within existing procedures, rules and laws. In this case, no more appeals means no more appeals.

The Surratt case involves the important judicial principle of finality. Prof. Steven H. Goldblatt, who runs Georgetown Law Center’s  appellate litigation clinic, told the court that finality is of vital importance to the legal system. Agreeing, a majority of the Fourth Circuit panel said last year that… Continue reading

A Brief Note On The Site’s Background Images

Limp wrist O

The Ethics Alarms web design uses backgrounds to illustrate ongoing ethics issues in the news. For some time, the background has featured a photo of Donald Trump, whose candidacy I regard as a long-running ethics train wreck of uncertain destination. I could justify leaving it up until sanity regains control and he is finally subdued and returned to the Crackerjack box from whence he came. That could take eight years, however.

Sorry. I know that made you throw up in your mouth a little. Me too.

Lately, readers whose gorges react similarly to mine when forced to view Mr. Trump’s visage have been calling on me to take him down, which I have reluctantly done. I can’t promise that he won’t be back, but the new background is the very strange photo from yesterday of President Obama letting his hand and arm go limp as it is raised by Cuba’s dictator—but his health care is grrrrreat!— Raul Castro.

I’m not sure what exactly is unethical here, or who is the unethical one, but something is. I would only suggest that if an American President chooses to boost the credibility and prestige of a ruthless tyrant, he can’t simultaneously act like his host has cooties. It certainly looks like Obama is saying, “Oops! I don’t want to look as if I am friends with this guy!”

I would suggest that this awkward moment is something that should have been worked out well in advance, as it was wholly predictable.

Ethics Verdict: The Republicans Should Vote On (And Approve) Judge Merrick Garland

Merrick Garland

For Senate Republicans, holding hearings on President Obama’s qualified and moderate nomination for the Supreme Court is both the ethical course and the politically smart course. It is also in the best interests of the nation.

In fact, the Byzantine political maneuverings by the President and the Republican leadership, by turns petty and ingenious, have handed Republicans a political chess victory, if only they are smart enough, responsible enough, and patriotic enough to grab it. Naturally, they aren’t.

It is infuriating, and all citizens should be infuriated.

A brief review of how we got to this point of looming GOP disgrace is in order:

  • Justice Scalia died, removing a towering conservative force from the Court. This meant that almost any replacement, and definitely one named by Obama, would make the Supreme Court more liberal than it has been in many years.
  • Seizing on the opportunity to make the election a referendum on the composition of the Court (which is was going to be anyway), Mich McConnell announced that no nominee named by Obama, an outgoing POTUS less than a year from leaving office, would be considered by the Senate.
  • Democrats and their allies in the punditry predictably pronounced this to be a breach of Senate duty. Embarrassingly, records surfaced of  Joe Biden asserting the same basic principle that McConnell was arguing for, when Bush was the President. Biden, I must duly note, is an idiot, but he’s still the current Vice President. Then again, all Biden has to do is say now, “I was wrong.” As he frequently is.
  • Though many predicted that Obama would name a transsexual, disabled black Jewish Latino judge with Socialist leanings to maximize the opportunity to politicize the process, he did the opposite. He named a qualified jurist.
  • The judge he named, Merrick Garland, is a white, veteran 63-year-old judge with a distinguished record, nothing flamboyant or controversial, who is as close to a non-ideological, non-partisan moderate as any Democratic President is likely to appoint from now until the stars turn cold.

Now, if Senate Republicans were interested in doing what is in the best interests of the nation—that is,  filling the Supreme Court vacancy as soon as possible, giving proper deference to a responsible and reasonable nomination by the President, avoiding a nasty and divisive partisan fight, and ensuring that the next Supreme Court Justice won’t be an intractable leftist firebrand determined to gut the Constitution or another “wise Latina” mediocrity who will pollute the record with touchy-feely ramblings—they would leap on this opportunity and unanimously confirm Garland, saying publicly that they reconsidered McConnell’s declaration in the interest of restoring the integrity of the nomination process and returning to the time before Democrats politicized the process beyond reason in the Bork hearings, giving the President his choice, regardless of philosophical bent, when the nominee is qualified, dignified, experienced and trustworthy. like Judge Garland Continue reading

Ethics Quote Of The Week: Washington Post Sports Columnist Norman Chad On “March Madness”

printable-march-madness-bracket

“People often ask me, “Why do you ignore college basketball?” Really? That’s like asking a vegan, “Why do you ignore cattle farms?…Why wouldn’t I ignore college basketball? They just round up the usual suspects every year, and, believe you me, these people are awfully suspect. The game is rotten at its core; it’s only cheating if you get caught, and if you get caught, you’re only liable if you’re losing.”

—- Sports columnist Norman Chad, on why he doesn’t follow the NCAA basketball tournament.

To which I reply, “Exactly.”

As Chad notes in his column, big-time college basketball is pure dribbling corruption. The players are exploited and tossed aside, few of them graduating and most leaving with little real education. The athletic programs warp school priorities and eat up institution resources that should be devoted to the curriculum,  the typically coaches are paid more than any three faculty members combined, and they teach their charges that cheating pays. Continues Chad in his inimitable style:

But the players don’t bother me – they are like cattle, used for two percent milk and tenderloins until their services are exhausted. It’s the coaches that bother me – the See No Evil Hear No Evil Do No Evil Block/Charge No Evil shim sham flimflam riffraff sitting on the bench in those fine suits with their fat wallets.

Jim Boeheim? A bum. John Calipari? Bum. Rick Pitino? Bum. Roy Williams? Bum. If these fellas are earning big paychecks from institutions of higher learning, institutions of higher learning must be in a different business than they once were.

Boeheim and Co. run the whole shooting match, and no matter what they do, you can’t run ‘em out of town unless they miss March Madness three straight times. Which brings us to Larry Brown. He’s at his third college coaching stop – UCLA, Kansas and now SMU – and he’s three-for-three for NCAA infractions. If there were a Recruiting Violators Anonymous program, he’d be John Calipari’s sponsor!

Bingo. Continue reading

The Flat Learning Curve Continues: Obama Skips Nancy Reagan’s Funeral. Of Course He Does.

Obama's job learning curve: still flat.

Obama’s job learning curve: still flat.

I wasn’t going to comment on this until two of my many clueless Facebook friends had to mock an indignant article about it on a conservative site. I don’t think Obama skipping Nancy Reagan’s funeral is worthy of outrage, but it is sad. It’s almost as sad as the degree to which the people who elected him have never comprehended what his job is.

Obama is not attending Nancy’s funeral because he was previously committed to attend a vital event called South by Southwest (SXSW) Interactive festival. Michelle Obama will speak at the funeral, but she is also speaking at the festival, making it obvious that the President could also do both if he wanted to. He doesn’t want to, just as he didn’t want to show respect to a sitting Supreme Court Justice who had died suddenly by attending his funeral.

That’s Obama; we should know him by now. He’s a petty, small man, but more important, he doesn’t seize opportunities to repair the poisonous partisan divide that he helped create because he doesn’t understand the symbolic nature of the Presidency, or just doesn’t give a damn. That attitude—I think both are true— has played a major role in creating the non-functioning government and the societal divisions he will leave as his primary legacy. Continue reading

Cutting The Racial Gordian Knot: What Are The Ethical Implications Of The Terrible Economic Disparity Between Black And White In America?

Gordian Knot

The question raises the ethical implications to all American citizens and our shared obligation to our nation and its society of a disastrous, crippling problem that poisons our culture. and society: the persistent plight of Black America.

Back when I was a senior in college majoring in American Government and the U.S. Presidency, I took a course  from Professor Thomas Pettigrew, then as now one of the foremost scholars on race, prejudice and public policy. It was about the challenges facing blacks as they tried then to benefit from new legislation and opportunities created by the Civil Rights Act and other policies, such as school busing. I was very impressed by Pettigrew’s even-handed, objective and non-political approach, even though, at my college, political teaching was the rule, not the exception.

I have never left a course so discouraged. Pettigrew, himself a pretty optimistic man, led us into one dead-end after another: black families, education, neighborhoods, political behavior, crime and more, all dysfunctional or suffering. All areas of black society interfered with or blocked improvements, progress, remedies and policy initiatives that showed promise to address racial inequality in other areas.

Late in the course I asked him if he saw any hope that in 50 years, black America would be approaching parity with white America. “I have hope,” he said. “But I honestly don’t see how we get there from here. There is a path, but we haven’t found it.”

It appears that my discouragement then was an accurate reading of the problems ahead.

Last week, these charts from the Brookings Institution’s Social Mobility Memos blog were posted to the web by other sources. They show how deeply the problems I was warned about have failed to improve in 50 years. Here is what they show:

1. Upward mobility is much more unlikely  for black than white Americans. 51% of the black Americans born into the lowest fifth of the earnings distribution remain there at age 40:

Should President Obama Attend Scalia’s Funeral? Of Course.

NICK SCHNELLE/JOURNAL STAR Pastor Larry Zurek leads a funeral mass for former Peoria Fire Cheief Ernie Russell on Friday morning at Sacred Heart Catholic Church. Russell was 74.

President Obama, we learned from Josh Earnest, won’t be honoring the late Justice Antonin Scalia by attending his funeral, and the Presidential spokesman couldn’t even say what weekend activity Obama deems more important. Already, conservative commentators and pundits are calling the odd decision an intentional snub, and many on the left are also obviously puzzled, causing them to make up excuses, like suggesting that the Scalia family told the President of the United States to stay away.

It’s not a snub, of course. It’s just a willfully lost opportunity to show some non-partisan class and leadership, or in other words, Obama being Obama. We’ve seen this kind of irrational, arrogant, toxic conduct from him before, as when he was the only world leader who wouldn’t deign to join with other heads of state in the mass support of France following the Charlie Hebdo terrorist attacks. This is Obama’s “It’s my Presidency and I’ll be a jerk if I want to” streak, unattractive, petty, and a major reason why the United States is as culturally, politically and societally fractured as it is.  Continue reading

Encore! Presidents Day Ethics: The Presidents of the United States on Ethics and Leadership

It’s President’s Day, and I see that it has been five years since the most popular Ethics Alarms President’s Day post was published. That one, from 2011, reminds us of the ethics wisdom and leadership acumen of the remarkable men who have served their country in the most challenging, difficult, and ethically complicated of all jobs, the U.S. Presidency.

In the middle of a campaign season littered with some disturbingly unethical candidates, it seems especially appropriate to re-post that entry now….with some updates. In 2011, I left out three Presidents, including the current one. Now all are represented, most of them well.

So…

Ladies and Gentlemen, the Presidents of the United States of America:

 

George Washington: “I hope I shall possess firmness and virtue enough to maintain what I consider the most enviable of all titles, the character of an honest man.”

John Adams: “Because power corrupts, society’s demands for moral authority and character increase as the importance of the position increases.” 

Thomas Jefferson: “On great occasions every good officer must be ready to risk himself in going beyond the strict line of law, when the public preservation requires it; his motives will be a justification…”

James Madison: “No government any more than any individual will long be respected without being truly respectable.”

James Monroe: “The best form of government is that which is most likely to prevent the greatest sum of evil.”

John Quincy Adams: “Always vote for principle, though you may vote alone, and you may cherish the sweetest reflection that your vote is never lost.”

Andrew Jackson: “One man with courage makes a majority.”   (Attributed)

Martin Van Buren: “No evil can result from its inhibition more pernicious than its toleration.”

William Henry Harrison: “There is nothing more corrupting, nothing more destructive of the noblest and finest feelings of our nature, than the exercise of unlimited power.” Continue reading

Jumbo Alert, As An Integrity And Corruption Check For Pundits, Journalists, And All Your Hillary Clinton-Defending Friends Looms

Jumbo film

The real test of when someone will lie to your face is when they will insist that their former, perhaps bias-supported but still sincerely-held position is still valid after all justifications for it have vanished. This is Jumbo territory, the point where Jimmy Durante, giant elephant in tow, shrugged to the accusing sheriff in front of him and said, “Elephant? What elephant?” That, however, was a joke. This is tragic.

Many of us knew we would reach this point long ago, of course. As many, including me, have documented since the New York Times first broke the story of how Hillary Clinton had defied policy, best practices, competent national security management, technology common sense and perhaps the law by receiving and sending her official State Department e-mail on a home-brewed server. First she said there was nothing improper about doing this, then she said she had received no classified information, then she said she had received no material marked classified. She trotted out rationalizations: “everybody did it,” “other Secretaries of State did it,” “don’t sweat the small stuff,” ultimately adding a rationalization to the list, “It wasn’t the best choice.”

Those of us who have followed the pattern of Clinton scandals over the years knew that her camp was running out of smoke when it defaulted to the old “vast right wing conspiracy” diversion that worked so well—for a while—during the Monica Mess. The facts have been pretty clear for a while now, to anyone with the honesty and fairness to acknowledge them. Hillary Clinton, for her own convenience (as she has said) and to keep her communications out of the view of Congress, the public, political adversaries and law enforcement as she mixed personal business, politics and influence peddling with her official duties, willfully endangered US security and even the lives of intelligence personnel by handling official communications in an insecure manner.

The FBI has been investigating all of this—not her, her campaign keeps reminding us, just the e-mails!—and the State Department, which has been acting as a partisan ally when it’s duty is to the American people, finally was forced by a judge to review and turn over the e-mails involved, other than the ones Clinton had destroyed by her lawyer (nothing suspicious or irregular about that). With each new batch revealed, more e-mails that contained classified information have been found. Former Defense Secretary and CIA director William Gates said this week that Russia, China and Iran, among other foreign nations, probably hacked Clinton’s e-mails, “given the fact that the Pentagon acknowledges that they get attacked about 100,000 times a day.” Meanwhile, State has identified over 1,200 emails that it deems classified were sent over Hillary’s private server, making her first denials ridiculous, and her ultimate denials an admission of gross negligence and stupidity, even if they were true. The Secretary of State didn’t discern that any of 1200 e-mails contained information requiring care and confidentiality? This is the “I’m not corrupt, I’m stupid” defense, which is one no Presidential candidate ought to be allowed to get away with, especially one being extolled by the current President for her alleged competence and experience.

Now the walls, and the facts, are closing in. Yesterday, the Obama administration confirmed for the first time that Hillary Clinton’s home server contained closely guarded government secrets, and announced that 22 emails that containing material requiring one of the highest levels of classification were so sensitive that they could not be released.  Is that clear? These are communications that were on an insecure server, vulnerable to hacking, that Clinton saw, and either didn’t recognize as such—she’s not that stupid—or didn’t care enough to start being responsible. With such e-mails, it doesn’t matter if they are marked: they are self-marking: big, loud, throbbing documents that any Secretary of State, even Secretary Gump, must know are classified because of their content.

The State Department revelation came three days before  the Iowa presidential caucuses, and, incredibly, the Clinton campaign complained about the timing! Yes, it is certainly outrageous to let voters know about the duplicity and incompetence of a candidate for President before they vote for her. This is how Clinton thinks. If that doesn’t bother you, get help.

Federal law makes it a felony for any government employee to mishandle classified information, and here comes the integrity check. With this new information, Clinton has no defense. By definition, allowing top secret information to be received and perhaps forwarded on an insecure, private server is mishandling, and illegal.  Clinton’s campaign, of course, is lying and spinning: the current tactic is to dismiss this as an inter-agency dispute over what is classified. (The Clinton-enabling Vox made bolstering this deflection the centerpiece of its “explainer”) However, when the current State Department is so sure of 22 e-mails’ top secret character that it feels it must withhold them from the public and the media, it is obvious that this was no close call, especially since State has been covering and spinning for Hillary to a disgraceful degree already.

So the facts speak: Yes, she lied. Yes, she endangered U.S. security. Yes, she willfully exposed classified documents to hacking by our enemies. Yes, she did this for her own personal and political benefit.

Yes, she broke the law, and this law ain’t jaywalking. Continue reading

Blame Tom Toles For This Post: NO, Obama Can NOT Honestly Claim That He Cut The Deficit

Toles deficit

While we’re on the topic of misleading statements, as in lies, foisted on the American public by the President of the United States, I now have to bring up his boast in his State of the Union speech that “We’ve done all this while cutting our deficits by almost three-quarters.” [Don’t get me started with “all this.”]

I was going to leave this infuriating line alone, I really was, because when you get on the topic of deficits, the numbers-spinners have a field day. Then I saw Tom Toles’ cartoon, above, for the Washington Post.

Toles, if I haven’t made it clear before, is the worst of a breed that is itself a disgrace to journalism, a form of editorial content that is immune from the ethical restrictions that are supposed to govern journalism. It is the ultimate “clown nose on/ clown nose off” scam, and Toles exploits its license beyond the nauseating limits set by his over-rated predecessor, the equally biased but not quite as shameless Herb Block….you remember, the guy who drew all businessmen as obese, cigar-chomping robber barons out of the 1890s, and conservative Congress members as cavemen. Yeah, he was subtle and fair all right. Toles is much worse.

By what version of English and logic can anyone say that Obama reduced the deficit at all, much less by “almost three-quarters? Here is the chart of the deficits since 2005 in dollars: Continue reading