February 19, 2007

Disconnected in DC

It is a long way from Washington, D.C., to Baghdad. Over 6200 miles to be exact. But watching the events of the last week, it would be possible to think that the two were ever further apart. On different planets, perhaps.

On Friday, the House of Representatives, after over 45 hours of debate spread over 5 days, passed a measure formally disapproving of President Bush’s plan to send an additional 20,000 combat troops to Iraq. Over the course of the debate, 392 House members took their 5 minutes to passionately defend their positions in front of a largely empty chamber, speaking only into the air that is the C-SPAN viewership. The bill that passed, however, was really only a “nonbinding resolution.” From a policy perspective, this nonbinding resolution has exactly zero effect on the future direction of Iraq other than lobbing some harsh words at the Administration. So much for sticks and stones, eh?

The House’s expression of public outrage may not have been much, but it still bested the performance of the Senate. In a startling display of Congressional impotence, the Senate failed to even get to a debate on the resolution passed by the House thanks to procedural rules. This failure means that, for now, Senators – many of whom are running for president – will not engage in debate, much less put themselves on record, regarding a crucial issue in our nation’s life.

Meanwhile, President Bush seems content to run out the clock on his term so that he will never have to admit a mistake and can pass his fiasco on to the next president.

This entire scene unfolds amid a backdrop of increasing American casualties and downed helicopters and bombs that kill scores of Iraqis even as security forces crack down. The contrast between real lives being lost and symbolic resolutions being debated – or not even debated in the case of the Senate – vividly drives home the disconnect between the powers that be in Washington and the events of the real world. It is no wonder that both congressional and presidential approval ratings are at historic lows – neither Congress nor the President is responding effectively to an immense national problem.

The sad fact is that the decision makers in Washington are not leaders, but politicians. Even as they debate crucial issues, they keep an eye on partisan strategy and the next election. Questions that may be asked when a vote must be cast could be, in this order: Is it good for me? Is it good for my party? Is it good for the country? These are the priorities of politicians. I have no doubt that many start in politics for all the right reasons – to serve the public and improve the country – but years within the Beltway have a tendency to warp perspectives to the point that nonbinding resolutions pass for bold action.

The real power of Congress when it comes to foreign policy – the power of the purse – was explicitly not on the table during last week’s debate and non-debate. Why? Because forcing politicians to take a stand on such a politically-charged issue may put politicians in politically-uncomfortable situations. The result of this reticence, unfortunately, is that American troops and an entire nation of Iraqis are put in truly uncomfortable, even deadly, situations every day.

February 05, 2007

Life and Death

I heard the news only hours after I left the courtroom following a hearing on whether my client, a death row inmate, could obtain DNA testing to corroborate his story of innocence. Tennessee Governor Phil Bredesen had issued a three-month moratorium on executions in Tennessee. I was at once relieved for my client, whose execution is now pushed back indefinitely, and pleased to see Tennessee join the growing number of states grappling to find the most appropriate way to impose the death penalty.

Although Governor Bredesen’s order offers hope for death penalty opponents, it certainly does not end the practice. In the very second sentence of his press conference announcing the moratorium, Bredesen proclaimed himself “a supporter of the death penalty” even as his executive order called into question the procedures for carrying it out. The executive order charges the Commissioner of Corrections with undertaking a comprehensive review of how the state carries out executions. Specifically, the review is to look at the actual administration of the death sentence – the lethal injection procedures and protocol – to ensure that Tennessee’s practice is consistent with moral and legal norms.

The action in Tennessee is part of what seems to be a quickly-expanding nationwide second look at the death penalty. In 1976, the US Supreme Court ruled that the death penalty was not cruel and unusual punishment, but in the last several years, several states have begun to reconsider whether that is the case. Both Florida and California are undergoing reviews of execution procedures similar to that ordered in Tennessee, but several other states have gone even further. In New York, the state’s highest court ruled the death penalty statute unconstitutional. In New Jersey, a commission recently recommended halting the practice, and the governor of Illinois commuted the sentences of all of that state’s death row inmates in 2003.

The driving force behind much of this review is the deeply felt need to get it right with the death penalty. In an age where DNA and other means have been used to exonerate several death row inmates, it is clear that the possibility of executing innocent individuals is very real. Governor Bredesen’s order is essentially an order to make sure Tennessee is getting it right when it comes to the actual administration of the death sentence.

However, there are numerous opportunities to go wrong before an inmate ever reaches the death chamber. Beginning with the collection of evidence at the crime scene, to the prosecution’s discretion to choose which defendants face the death penalty, to the competence of defense attorneys to confront the prosecution’s evidence, to complicated and often vague jury instructions, through post-trial appeals and into the science behind lethal injections, there are countless opportunities for the human beings involved in death penalty practice to make mistakes. And as humans are wont to do, mistakes are made. These mistakes don’t mean that every death row defendant is innocent. They simply mean that no death row inmate was sentenced without the potential for error.

Are there crimes for which the perpetrator deserves to be put to death? Absolutely. However, the death penalty does not serve either deterrence or economic goals. It may provide some comfort to victims’ families, but even that must be diminished when the death occurs a quarter-century after the crime, as is typical. Just because some crimes and criminals deserve a penalty of death does not mean that we, as a society, should overlook the inevitable flaws in our system to impose it.

Governor Bredesen’s impulse for review is laudable, but the review he has ordered does not go far enough. Rather than only focusing on what occurs in the death chamber, the state would be better served by reevaluating death penalty administration from start to finish. In my mind, there is no way to devise a system, administered by human beings, for taking human lives without creating the potential for grave errors. In these matters of life and death, there is no room for error.

January 22, 2007

The Audacity of Hype

There is a tendency in this country to over-inflate the importance or impressiveness of everything from movies to the latest diet fads. Thanks to the capitalist need to sell, sell, sell, we are a nation of hype. For the next two weeks, we will endure the – pardon the metaphor – super bowl of hype, as we learn more than we ever needed to know about the teams, players, coaches, fans, owners, trainers, etc. involved in the Super Bowl itself.

Most Super Bowls, and indeed most anything that receives such extreme promotion, cannot live up to the hype. Expectations are set so high that it is nearly impossible to meet them. So when an event or individual delivers to meet towering expectations, it is truly remarkable. Barack Obama is a truly remarkable individual.

If you are paying attention, you know Barack Obama because he is currently riding one of the most extreme waves of hype a politician has ever ridden. He has appeared on Oprah and Monday Night Football. He has a new book (The Audacity of Hope) that is #1 on the New York Times bestseller list, and an old book (Dreams from my Father) that is also doing very well, thank you (#5 for paperback nonfiction). And, oh yeah, last week, Obama took the first steps toward running for president.

I remember the first time I heard of Barack Obama. In the summer of 2004, when Obama was just a law professor and Illinois state senator (I use “just” very respectfully), I read a magazine profile on him and thought to myself, “Wow! This guy, however you pronounce that name, says exactly what I would want a leader to say.” Several weeks later, even though I was taking the bar the next morning, I waited up to watch Obama’s speech to the Democratic National Convention. Honestly, I was expecting to be disappointed – there was no way he could deliver on the expectations I had for him after reading that article. Then I watched Obama deliver the most impressive and finely-presented speech I have ever seen live. Both the substance of what he said and the way in which he said it captured my precise feelings, a mixture of criticism of the present and hope for the future.

Over two years later, the hype that began the moment Obama finished that speech seems to know no bounds, yet Obama continues to deliver. Even as he seems to be everywhere, he has remained humble. Even as he works in a partisan Congress and has entered what will be a bruising campaign, he has remained convincingly positive and collegial. Even as the media compels sound bites over substance, he has remained thoughtful and rational. And even as his own previous performances demand consistently inspiring oration, he has consistently risen to the challenge.

For his own part, Obama has said he is “suspicious of hype.” (Of course, he said this at a press conference in New Hampshire where he was both promoting a book and feeding speculation about his presidential ambitions.) He explains his prolonged 15 minutes of fame as a result of Americans being “interested in being called to be part of something larger than the kind of small, petty, slash and burn politics that we’ve been seeing over the last several years. And to some degree, I think I’m a stand-in for that desire on the part of the country.” Thus, even as he feeds his own hype, Obama reminds himself and us that he is merely the vessel onto which many Americans have projected our hopes.

Barack Obama certainly will not be the most experienced candidate running for president. He is unlikely to be the best funded. At this point, it remains too early to tell if he is the best person for the job. But, more than any candidate I can remember, Obama has an opportunity to shift the way we do business in this country simply by having the audacity to be himself.

January 15, 2007

In the Words of Dr. King

Last year, I celebrated Martin Luther King Day by sharing words from Dr. King’s Letter from a Birmingham Jail. I still believe that no one captures the spirit of this day better than Dr. King himself. This year, I’ve chosen passages from a speech Dr. King delivered to a church conference in Nashville on December 27, 1962, as the country was still grappling with the 1954 Brown v. Board of Education decision. Since I’ve been writing on desegregation and integration a bit recently, I thought this speech, “The Ethical Demands for Integration” was appropriate. (for last year’s passages, click here)

On the difference between desegregation and integration…
“We must always be aware of the fact that our ultimate goal is integration, and that desegregation is only a first step on the road to the good society……Desegregation is eliminative and negative, for it simply removes legal and social prohibitions. Integration is creative, and is therefore more profound and far-reaching than desegregation. Integration is the positive acceptance of desegregation and the welcomed participation of Negroes in the total range of human activities. Integration is genuine intergroup, interpersonal doing. Desegregation then, rightly, is only a short-range goal. Integration is the ultimate goal of our national community. Thus, as American pursues the important task of respecting the “letter of the law,” i.e., compliance with desegregation decisions, she must be equally concerned with the “spirit of the law,” i.e., commitment to the democratic dream of integration.”

On the danger of desegregation without integration…
“We do not have to look very far to see the pernicious effects of a desegregated society that is not integrated. It leads to ‘physical proximity without spiritual affinity.’ It gives us a society where men are physically desegregated and spiritually segregated, where elbows are together and hearts are apart. It gives us special togetherness and spiritual apartness. It leaves us with a stagnant equality of sameness rather than a constructive equality of oneness.”

On the lack of freedom in a segregated society…
“A second ethical demand of integration is a recognition of the fact that a denial of freedom to an individual is a denial of life itself…The absence of freedom is the imposition of restraint on my deliberations as to what I shall do, where I shall live, how much I shall earn, the kind of tasks I shall pursue. I am robbed of the basic quality of man-ness. When I cannot choose what I shall do or where I shall live or how I shall survive, it means in fact that someone or some system has already made these a priori decisions for me, and I am reduced to an animal. I do not live; I merely exist…I cannot adequately assume responsibility as a person because I have been made a party to a decision in which I played no part in making.”

On the failure of American leaders to fully embrace the spirit of the Brown decision…
“It is sad that the moral dimension of integration has not been sounded by the leaders of government and the nation. They staunchly supported the principle of the Court’s decision but their rationale fell short of being prophetic. They sounded the note that has become the verse, chorus and refrain of the so-called calm and reasonable moderates – we must obey the law! The temper of acceptance might be far difference if only our leaders would say publicly to the nation – we must obey the mandate of the Court because it is right!”

On the difference between enforceable obligations, such as desegregation, and unenforceable obligations, such as integration…
“[U]nenforceable obligations are beyond the reach of the laws of society. They concern inner attitudes, genuine person-to-person relations, and expressions of compassion which law books cannot regulate and jails cannot rectify. Such obligations are met by one’s commitment to an inner law, written on the heart. Man-made laws assure justice, but a higher law produces love. No code of conduct ever compelled a father to love his children or a husband to show affection to his wife. The law court may force him to provide bread for the family, but it cannot make him provide the bread of love. A good father is obedient to the unenforceable.”

On the limited, but important role the law can play in achieving integration…
“Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless. The law cannot make an employer love an employee, but it can prevent him from refusing to hire me because of the color of my skin. The habits, if not the hearts of people, have been and are being altered everyday by legislative acts, judicial decisions and executive orders. Let us not be misled by those who argue that segregation cannot be ended by the force of law. But acknowledging this, we must admit that the ultimate solution to the race problem lies in the willingness of men to obey the unenforceable…A vigorous enforcement of civil rights laws will bring an end to segregated public facilities which are barriers to a truly desegregated society, but it cannot bring an end to fears, prejudice, pride, and irrationality, which are the barriers to a truly integrated society…True integration will be achieved by true neighbors who are willingly obedient to unenforceable obligations.”

January 08, 2007

Modest Hopes for the New Congress

The political world is abuzz that the Democratic takeover of Congress signals the coming of a significant shift in Washington. Although I’d like to be hopeful, I recognize the many barriers to entrenched politicians acting too quickly or boldly. Still, I have a few modest hopes for the Democratic-led 110th Congress.

Perhaps the least tangible thing I’d like to see is a shift in the way business is done in Washington. I’d like to see a city where the main business is governing rather than merely politics. This means less focus on winning elections and more on seeking workable and moderate solutions to the country’s problems.

- As far as specific policies go, I’d like to see a shift in the government’s apparent priorities toward helping those who need help rather than protecting those who do not. This means a commitment to lifting the less fortunate to a more stable place. In the six years of Republican-monopoly government, increases in wages have not kept pace (not even close, really) with increased productivity, rendering moot the maxim that harder work can lift an individual or family. Meanwhile, a combination of tax cuts and salary increases has put the wealthiest even further into the economic stratosphere. I don’t really have a problem with some people being obscenely rich. What I have a problem with is some people getting obscenely rich thanks in part to government policies while others get stuck in a cycle of debt or poverty while the government does little to help. On this issue, I’ll be looking for a push on the minimum wage and a tax program that allows the government to provide effective programs to those who need help.

- Health care: Why are 47 million Americans – almost all of whom are the least equipped to cover medical costs – left to fend for themselves when it comes to health care? Although universal coverage could be something I would support, I recognize that such a drastic change isn’t likely in the next two years. Instead, I’d modestly like to see steps toward increased coverage, beginning with universal coverage for the most vulnerable – children.

- Education: This year, Congress will have the opportunity to re-authorize the No Child Left Behind Act, President Bush’s signature education law. It has become somewhat fashionable to bash this law, but there are many good provisions within it and the law’s overall spirit – accountability for educational outcomes – is in the right place. I hope the Democrats on Capitol Hill will recognize the valuable parts of this law, such as measuring schools’ performance based on how each individual group (black, white, Hispanic, etc.) does, while adjusting the bad ones. This issue provides the greatest opportunity for bipartisan work toward a national goal. Both sides must seize it.

- Iraq: Even if continued chaos in Iraq may be good for Democrats, it is not good for the country. I hope the Democrats in Congress can find an appropriate balance between holding the Administration accountable for its mistakes and working with the Administration toward a resolution. Democrats must resist any temptation to exploit the current quagmire for political gain and engage in the type of intense problem solving Iraq requires. This means not dismissing outright Administration proposals simply because the Administration has made mistakes in the past, but also putting the Administration’s feet to the fire to come up with credible answers. I don’t think harping on the past few years’ errors (and there have been plenty to harp on) will be particularly useful. Rather, I’d like to see the Democrats use their newfound oversight and subpoena power to ensure that proposals for the future are well thought out, realistic, and effective.

The unifying theme of my modest hopes for this Congress is one of leadership for the nation rather than loyalty to a party. Unfortunately, such a strategy requires a willing partner from the other side of the aisle. If the Administration or congressional Republicans are unwilling to budge from their current agenda, it will be left to Democrats to assert their congressional power in a more partisan way. If that happens – and it is entirely possible, perhaps even likely – than it is unlikely any of my hopes for this new Congress will be realized.