Author: David Gray


What Does Jones Mean for the Exclusionary Rule?

Many thanks to Danielle and the good folks at Co-Op for inviting me back and for again tolerating my slow starts.  I am late to the Jones party, but nevertheless cannot pass on the opportunity to say a few things.  Foremost, I think I represent the views of criminal procedure professors nationwide when I thank the Court most sincerely for its timing.  A couple of terms back the Court issued its opinion in Gant “clarifying” Belton smack in the middle of reading week, which was difficult timing to say the least.  More common practice still is the Court’s regular habit of issuing the game-changers in May and June, which requires us to write long mails to students explaining to them how much of what we said to them over the past semester ought be wiped from their memories and to make decisions about whether to give credit on exams for answers that were right when written, answers that were wrong when written but are now right, both, or neither.  By contrast, the timing of Jones could not have been better for most of us, who were set to teach the two-prong test from Harlan’s Katz concurrence that week.  There was and continues to be some adjustment in what we teach about the Fourth Amendment, but at least it is all timely.  So . . . Thanks Your Honors, very considerate indeed!

It is tempting to jump into the substantive conversation about whether Jones is good, bad, neutral, or a complete enigma for the Fourth Amendment, but I will demur for now, mainly because I cannot find sure footing for anything beyond the obvious: Trespass is back baby! (If it was ever gone).  Instead, I’d like to wonder out loud about one of the adjustments I’m facing in class as we turn to our discussions of the exclusionary rule:  What, if anything, does Jones mean for remedies.  The issue was not briefed or argued in Jones, and each of the written opinions seems to assume without comment that the remedy provided by the district court—exclusion—was appropriate.  Howard Slugh wrote a bit about this over at the National Review, but there is certainly much more to say.

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The Liberating Potential of Pragmatism

A couple of years ago Malcolm Gladwell published a provocative and thought provoking article in the New Yorker suggesting that our common-currency instincts about social desert might run contrary to and impede good policy.  Relying in part on the apocryphal tale of “Million Dollar Murray,” Gladwell made the case that the solutions to many of our most expensive social challenges may not require systemic change or large policy initiatives.  Rather, we might see the greatest effect by focusing our attentions on a few key players.  “Murray” was one candidate.  An often homeless man with a tendency to binge, Murray and a relatively small cohort of mostly non-violent homeless addicts, according to Gladwell, cost taxpayers and public institutions in Reno Nevada hundreds of thousands of dollars in a matter of months split between police officers, emergency services, and public hospitals.  Gladwell quotes one official estimating that during his decade living on the streets of Reno, local hospitals spent more than a million dollars on Murray alone.  The solution to massive law enforcement, emergency services, and public health cost overruns, Gladwell went on to suggest, might be to identify the most expensive consumers of these resources and give them free housing, a personal social worker, job training, and free healthcare.  The sticking point, of course, is that doing so would seem to reward bad behavior, inverting our common notions of desert and opening the door to a moral hazard problem.

In somewhat less provocative style, Atule Gwande recently made a similar case for aggressive primary care, also in the New Yorker.  The focus of Gwande’s reporting is a project in Camden, New Jersey, called the Camden Coalition of Healthcare Providers, which was founded by Jeffrey Brenner.  According to Gwande, as a young family medicine practitioner in Camden, Brenner noticed that many ambulance runs and hospital visits originated in a handful of neighborhoods in Camden.  As he dug into the data more, he calculated that one percent of Camden’s population was responsible for over thirty percent of its emergency medicine and crisis inpatient costs.  Once he had the data really dialed in, Brenner discovered that the residents of a couple of buildings consumed millions of dollars a year in healthcare costs that Brenner considered avoidable because they were the consequence of bad primary care, poor follow-up, and an incapacity to capture and make available to multiple providers crucial patient information.  The Camden Coalition is designed as an experimental alternative.  By providing to these neediest of consumers easy local access to physicians, aggressive follow-up from by medical professionals, and life-coaching to help them break bad habits and develop good health practices, the Coalition has already achieved a significant decrease in overall healthcare costs for the group and therefore Camden, though, here again, moral hazard looms.

What intrigues me about these sorts of experiments in social interventions is how they run counter to many of our sacred notions of liberty, desert, and personal responsibility.  Our public policy discourse has always been dominated by contests among competing ideologies.  Often these ideologies are incommensurable in fact or in practice, grounded in competing ungrounded base premises.  The promise of American pragmatism and the social science projects to which it gave birth was to set secular and sacred religions aside in the forums of public policy debates in favor of evidence.  While evidence-based approaches surely have their limits, they at least promise the possibility of a shared vocabulary and, perhaps, a consensus on the best imperfect way forward in the face of social challenges that require coordinated action.


More on the Critical Role of Women in Transitions to Democracy

The other day I posted a celebration of Secretary of State Clinton’s recent call for Egypt and Tunisia to include women in the processes of their transitions to democracy.  Transitional justice is one of my scholarly interests, so I thought I would say a bit more about why it is so important that women have a seat at the table during transition.  More after the jump.

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Making Sure Women Have a Seat at the Table in Transitional Societies

Secretary of State Hillary Rodham Clinton used her speech at the International Women of Courage Awards to call for women to be included in the processes of transition underway in Tunisia, Egypt, and elsewhere in the Middle East.  According to Secretary Clinton, despite the fact that women played a prominent role in recent popular uprisings in Tunisia and Egypt, no women were invited to “join in drafting constitutional amendments for the transition to democracy [in Egypt].”  Clinton rightly expressed her concerns with this state of affairs, pointing out both that “women . . . deserve to be at that table making those choices that will affect their lives and the lives of their daughters and theirs sons” and that “[n]o government can succeed if it excludes half of its people from important decisions.” 

The experiences of women in abusive societies and the roles and rights of women in times of transition are topics of considerable interest for transitional justice scholars.  Fionnuala Ní Aoláin, Ruth Rubio Marin, Christine Bell, and Catherine O’Rourke deserve particular credit for pressing these issues in recent articles and collected editions.  The central messages of their important scholarship are: 1) that women’s experiences as victims are unique both because women are more frequently subjected to sexual violence and because women often bear much of the economic and social burdens of family survival; 2) that women are uniquely vulnerable during and after transition and are at risk of remaining victims of oppression and targeted violence even as the rest of society is liberalized; 3) that democratic commitments core to most transitional movements entitle women to a “seat at the table” during transition; and 4) that by including women in transitional and transitional justice processes, transitioning societies will be in a better position to achieve lasting peace while making good on their core commitments to democracy, human rights, and the rule of law.  While hard to argue, these claims on justice have yet to gain much traction in actual transitions.  Secretary Clinton’s comments are therefore welcome and well-timed.


The Other Bush Doctrine

As someone who thinks and writes about transitional justice issues, I have been far more interested in recent events in Sudan than those in Tunisia, Egypt, Libya, Yemen, Bahrain, Saudi Arabia, and Jordan (more on this in later posts), but that doesn’t mean I have not been watching in wonder and admiration the events unfolding in North Africa and the Middle East.  I think we all have; and those are easy intellectual emotions to justify.  What I have been more conflicted about is whether it is also appropriate for us to feel a bit of pride.  I think it is, but not for the reasons many conservatives have been trumpeting

More after the jump.

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A TRC for the Bush Years?

Senator Patrick Leahy proposed yesterday in a speech at Georgetown that we open a truth and reconcilliation committee to bring to light our engagement in acts of torture under the Bush administration. While the impulse to revelation is laudible, I am not persuaded that this is a case for a TRC.

Foremost, the conceit of a TRC is that those who participate are granted amnesty. That grant of amnesty may be an accommodation to reality. Frequently in cases where TRC’s are used it is practically impossible to prosecute and punish everyone responsible for acts of atrocity; and in light of this justice gap, there is a political decision to forego punishment both because any prosecutions would be selective and because a TRC can achieve a more expansive account of the past than would be provided by a smattering of individual criminal trials. Amnesty may also have a more normative bent, recognizing that many of those who participated in past abuses did so out of a justifiable sense that what they were doing was right, or at least not illegal.

It’s hard to see the first justification for a TRC in the case of torture and other human rights violations perpetrated under the Bush administration. As a matter of fact, the numbers of those closely engaged as primaries or accessories in acts of torture are unlikely to be so large that it is impossible to investigate thoroughly and, if appropriate, prosecute all cases. Similarly, when viewed in light of the pervasive cultures of abuse addressed by the TRC in South Africa, say, it is hard to make the case that acts of torture committed by or with the support and assistance of government agents were, in all respects, “legal” from the point of view of the perpetrators. Agents of Bush policies might claim that they got legal advice to the effect that what they were doing was legal, but bad legal advice is seldom an excuse in the criminal law and, without more, it is not clear to me that the fact that the attorneys in question worked for the President makes a material difference. Suggestions that the President himself may have endorsed acts of torture does little to clarify matters unless one accepts Nixon’s view that what the President does is legal simply because he does it. I do not.

During last night’s press conference, President Obama fielded a question about Leahy’s proposal from Sam Stein of the Huffington Post about Leahy’s proposal. His sensibe answer, consistent with representations he made during the campaign, was that “My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen.” Bravo; which makes all the more unhappy the fact that Obama’s Department of Justice has taken the baton from the Bush Administration in obstructing efforts by torture victims to seek justice.


McCain–Sage of Stability

During the ending days of the Presidential campaign it seemed to those on both sides of the Red-Blue divide that we might be facing the end of days; some because a man of African heritage with documented exposure to Muslims might be elected, and others because he might not be elected because he is a man of African heritage with documented exposure to Muslims.

John McCain took an uncomfortably agnostic position in this battle of the social apocalypses. He suggested in the offing that Barack Obama was a man of mystery who had known associations with terrorists that had yet to be fully explained. Yet, Senator McCain was always cautious to stop short of overtly plucking the strings of lingering racism and well-nurtured xenophobia. His running mate was famously, and perhaps shamelessly, much more reckless, as were a substantial portion of his official and unofficial champions. His supporters in the electorate quickly connected the dots marked by the candidates, their deputies, and members of the media who regard the seeding of dark and seething suspicion as simply part of “showbiz,” to conclude that then-candidate Obama was, himself, a terrorist, a “sleeper cell,” a “racist . . . loon” and, quite famously, an “Arab,” and therefore unworthy of trust.

Senator McCain’s response to the “Arab” allegation was not to overtly deny the claim. Rather, he emphasized that Obama is “a decent family man, citizen, [with whom] I just happen to have disagreements . . . .” Senator McCain was criticized for that reaction by some who thought he should have more firmly denied the claim itself, or corrected the underlying assumption of the speaker that Arabs are not to be trusted, but I think McCain’s instincts were right, revealing a pretty sophisticated political theory of social stability with which I agree. More on why after the jump.

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Is Accountability Part of the Change Agenda

As early as April last year, candidate Obama stated his commitment to investigate and, if the facts support it, prosecute those who perpetrated acts of torture during the Bush Administration. In August, the commitment to prosecute if appropriate appeared to remain intact, but days after the election had already fallen from favor, though a commitment to truth appeared to persist.

As the burdens of pragmatism, or perhaps appeasement, have mounted, President-Elect Barack Obama (“PEBO”) appears all but to have abandoned even the possibility of an investigation.

More thoughts after the jump.

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