My Contribution to the Enlightenment Now

A friend who’s reading Steven Pinker’s defense of the European Enlightenment, Enlightenment Now, alerts me to the fact that I am name-checked on page 210:

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Nice to encounter a fair and reasonable summary of your work in a best-selling book, especially one whose argument you find congenial.

If you’d like the longer version of this argument, you can buy, or borrow, or otherwise acquire my 2010 book, Ending the Death Penalty: The European Experience in Global Perspective. And if you’re wondering: Yep, it’s written for non-lawyers.

“Trump, The Courts, and the World” in LTO Online

I wrote a little something on the legal implications of Trump's victory on Legal Tribune Online:

In a deeply riven America, the only point about which all Americans can agree is this: The election of Donald Trump is the most stupendous political event Americans have seen in our lifetimes. He is the first US President with no previous political or military experience. His campaign was run by a bare-bones staff and was ludicrously amateurish. The general verdict was that he lost all three debates with Hillary Clinton. He spouted a seemingly endless series of falsehoods, racist and sexist rhetoric, and offensive remarks, any one of which would have destroyed an ordinary candidate.

Yet these supposed flaws were simultaneously the key to his appeal. He came across as abrasive, decisive, direct, and rude – but genuine. Against Hillary Clinton's scripted, poll-tested soundbites, he offered tirades against the evils of the system which were as blunt as they were vague. Both his charisma and his policy positions motivated millions of less-educated white voters to switch their votes from Obama or to go to the polls for the first time, defying all forecasts. He also attracted surprising support from white voters with college degrees, and even outperformed Mitt Romney among blacks and Hispanic voters. Trump was also assisted by Clinton's safe, lackluster campaign, which sparked little enthusiasm and left her vote totals millions short of what Obama achieved.

I look at how Trump might affect the federal judiciary and how the courts might look at some of the foreign policies he says he supports. Go over and read the whole thing if you're interested.

Right now I'm working on a piece about how the US could be transformed into a multi-party system. It seems to me the process of shoehorning all the political tendencies in the US into two broad coalition parties is now causing more problems than it solves (i.e. by providing stability). But first, to catch up after a long election binge.

Behold! I Shall Fish the Bottles Out of the Düssel

Take a look at this:

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This is the Düssel river, the local Rhein tributary that gives Düsseldorf its name. Some rivers are so big, cities are built around them, not over them. The Düssel isn't that big. The city fathers of Düsseldorf did actually keep the river, mind you. However, it flows underground most of the way through the city, only popping into view occasionally. But when it does come into view, it's a refreshing change. And as here, near the Karolingerstraße, a bit of riverbank has been preserved, creating a nice park-like atmosphere.

Granted, it's only a little brook, and the riverbank is only about 5 meters on either side before the streets and buildings begin. But even a small bit of nature and green in the city does a surprising amount to make a place more livable. Trust me, I've lived in cities which don't know how to do this.

But here's the thing: you see those shapes in the water? No, they're not fish. There are fish in the Düssel, but they're much smaller. Those things are bottles. 

Fucking bottles.

Over the years, subhuman fucksticks have finished their bottles of cheap beer and casually tossed them into the river. Even though there's a bottle deposit in Germany, which poor people rely on, scouring the city for deposits. You could simply put the bottle on the bridge over the river, and it would be gone in literally 5 minutes, collected by some retiree living on a miserly pension. Also, no more than 2 meters from where I shot this photo, there are not only trash bins but a fucking glass recycling box.

But did Jackass McShitforbrains (or perhaps Güldüz Al-Antisocial) use any of these opportunities? No. He just threw the fucking bottle into the cool, clear, pristine water of the river. So every single time a human crosses this bridge and pauses to enjoy a nice view, he's reminded of the fact that certain humanoid entities exist who would fuck up a nice little view out of sheer laziness or spite.

I have never actually seen anyone throw a bottle in the Düssel. Actually, that's pretty fortunate, because if I did, I would probably fly into a rage and try to beat them to death. I'm not joking. One of the reasons Northwestern Europe is such a nice place to live is that people take care of public spaces. One of the many curses of the developing world is that people in those countries have no understanding of why it's important to keep public spaces clean. They are often scrupulously neat in their private homes, but think nothing of throwing garbage anywhere in the open. This is one of the key conflicts that arise when immigrants from the Third World arrive in Germany: they go picknicking in the park and leave a mound of dirty diapers, trash, bottles, plastic bags, disposable barbecues, and food remains just sitting in a pile in the middle of a pristine meadow of luscious green grass. 

Now, part of this is because the countries they come from don't have functioning garbage-disposal infrastructures, etc. But there's also a cultural component, as anybody who's ever lived in a country like India can tell you. Even in middle-class families, there's a sense that the interior of the home is a focus of pride and should be kept spotless, but if you don't own the land — especially if nobody owns the land — then it's fair game to just throw anything away there. As a 2013 book call The Concept of the Public Realm puts it:

Take something as simple as streets and public parks. Since they lie outside the family home, they are seen as a no-man's land, an empty space, almost a wilderness. While the Indian home is clean and tidy, streets and even parks are unacceptably dirty. Streets are used as garbage heaps, and rubbish and leftover food is thrown around in parks. Even the front of the house is sometimes turned into as a garbage heap. Since public spaces are not seen as theirs, Indians generally take no care of them and expect the civic authority to do so. And if it does not, as is generally the case, things are left as they are. It is striking that few Indians protest against dirty streets and lack of pavements and zebra crossings, almost as if they cannot see how things can be otherwise (Kakar and Kakar 2007, p. 21).

Not that India deserves to be singled out. The problem also exists all over the Arab world and even in Italy, although it's much less serious there.

In any case, I've had enough. I already have a really long pole which I use for certain camera shots. I just ordered a pool net strainer. When the weather cools down, I am going to go out there and clean out those bottles. You'd think some German would have done this already, but there's an old German proverb — as accurate now as it ever was — which goes: "A German is someone who, when he sees a mess, sneers in disapproval (die Nase rümpfen) instead of cleaning it up." 

Well, fuck that shit. Just as Tyrell Corporation's motto is "more human than human", mine is "more German than German". I am going to clean out those goddamn bottles, and post before-and-after pics to prove it. If that doesn't earn be the German Service Cross, I don't know what will.

The Boston Globe Praises My Book

A little blatant self-promotion here. Katharine Whittemore in the Boston Globe just began a round-up of seven books about capital punishment and life sentences with this punchy, but essentially accurate, abstract of my book's argument:

Why has Europe ended the death penalty, but we’ve still got it? The conventional answer trades on cultural divides: America is an immature cowboy nation, racist and trigger happy, while Europe is more measured, mature, and its societies, chastened by two world wars, are understandably keen to avoid further violence. They’re enlightened; we’re philistine. Germany, in fact, got rid of capital punishment in 1949 and Britain in 1969. Before I read today’s books, I’d vaguely guessed that the Germans acted in revulsion at their Nazi past, and the British embraced the moral revolution of the Sixties. I was flat wrong; in both cases, the people overwhelmingly supported the death penalty. But their leaders coolly, blatantly overruled them.

“Ending the Death Penalty: The European Experience in Global Perspective” (Palgrave MacMillan, 2010) helped me, like no other book, to understand the worldwide evolution of the ultimate punishment. When Andrew Hammel, a professor of American law at the University of Düsseldorf, asked European jurists and pols why they’ve succeeded where we’ve failed, he constantly heard this refrain: Americans are naïve to think public opinion must change before the law changes. That’s because the “desire to see murderers executed is a basic drive of human nature, one which only the most educated are able to overcome.”

So that’s their strategy: an elite fait accompli. There are long roots here, for the earliest calls for diminishing the death penalty came from European philosophers invited by European monarchs to put their ideas into practice. Voltaire was pivotal and so was Italian jurist Cesare Beccaria, whose 1764 landmark treatise, “On Crimes and Punishments” (Beccaria, 2013), remains powerful reading today and had a marked influence on Thomas Jefferson and John Adams. Beccaria found it immoral and illogical to treat brutality with brutality: “Murder, which [judges] would represent to us as a horrible crime, we see practised by them without repugnance or remorse.’’

In our era, when those on death row in the United States are in for heinous crimes only, we forget that the state once killed for far less. In 19th century Britain, you could die for some 200 transgressions, including vagrancy and “theft from the premises of a calico printers.” The march toward abolition was a slow one, steadily scratching offenses off — but it was basically a top-down process. Such condescension is a nonstarter in our more populist, pluralist society where 63 percent of Americans favor the death penalty. Eastern European countries had similar stats but, in order to join the European Union, they had to end the practice. The responsive structure of American politics guarantees, for now, it’s here to stay.

Letter Published in London Review of Books

In the July 17th London Review of Books, Judith Butler reviewed Jacques Derrida's On the Death Penalty, Vol. 1. She noted Derrida's reliance on a key passage in Freud's Civilization and its Discontents:

A brief passage in [Freud's] book proves quite important for Derrida’s argument. Freud is writing about the death penalty: ‘One is irresistibly reminded of an incident in the French Chamber when capital punishment was being debated.’ (I take it that this is the 1790s.) ‘A member had been passionately supporting its abolition and his speech was being received with tumultuous applause, when a voice from the hall called out: “Que messieurs les assassins commencent!”’ It is as if the call to let the assassins begin their work is of a part with the passions aroused by abolitionist discourse itself. Are abolitionists like anti-pornography campaigners who end up exciting their supporters with their graphic descriptions of the porn they would get rid of? Abolitionism has a different problem, since here it isn’t so much desire but the death drive that cloaks itself in moral opposition to its own expressions. Does Derrida’s reading suggest that opposition to the death penalty can quickly be converted into its opposite, unleashing a celebratory affirmation of its destructiveness?

I hadn't read Freud's book in quite a while, and had forgotten that he had discussed the death penalty in it. In any case, I was quite sure Freud's interpretation of this quotation was seriously wrong, since I had encountered the phrase several times in research for my death penalty book. I did a bit of research, and located the quotation. The London Review of Books just published my letter correcting Butler, Derrida, and most importantly Freud, who started the whole journey into erroneousness. Here it is, along with another letter which might be of interest to German readers: 

The Death Penalty

Judith Butler repeats a mistake first made by Freud about the origin and meaning of the phrase ‘Que messieurs les assassins commencent’ (LRB, 17 July). It was not ‘called out’ during a debate in the ‘French Chamber’ in the 1790s in response to arguments against capital punishment. In fact, the French journalist Jean-Baptiste Alphonse Karr coined the phrase in an 1849 issue of his serial Les Guêpes. Further, the phrase was hardly intended as a cry of encouragement to murderers. The full passage (my translation) reads: ‘The law of the land kills those who have killed. If one wishes to abolish the death penalty in such cases, let the murderers begin – if they do not kill, we will not kill them.’ In Civilisation and Its Discontents, Freud reproduces only the five-word exhortation. He seems to interpret it as a frenzied expression of bloodlust, and follows it with meditations on the violence inherent in human nature. In context, of course, it’s just a snappy retort to death-penalty abolitionists – and sometimes a retort is just a retort.

Andrew Hammel
Heinrich-Heine University, Düsseldorf

Both in Nietzsche Zur Genealogie der Moral and in the translation of Derrida quoted by Judith Butler, the text reads ‘der kategorische Imperativ riecht nach Grausamkeit,’ not ‘reicht von’. ‘Riecht nach’ means ‘reeks of’; ‘reicht von’ means ‘ranges from’. Walter Kaufman and R.J. Hollingdale, as well as the 1994 Cambridge translation by Carol Diethe, give ‘smells of cruelty’, but (as Peggy Kamuf, the translator of The Death Penalty, notes) in the French original Derrida actually uses the English word ‘stinks’ – neither ‘reeks’ nor ‘smells’ – to translate the German.

Michael Robertson

Augsburg

China Rethinking Capital Punishment?

The New York Times notes China's softening stance on the death penalty: 

Last month, China’s Supreme People’s Court overturned the death sentence of a woman who brutally killed and dismembered her husband. The landmark decision to send the high-profile case back to a provincial court was yet another sign that the country’s embrace of the death penalty is loosening.

China is believed to execute more people each year than the rest of the world combined, and 43-year-old Li Yan initially seemed a likely candidate for death row. In 2010, she beat her husband to death with an air gun, chopped him into pieces and boiled his body parts. But police photos and a medical report backed up Ms. Li’s claims that her husband had abused her — stubbing out cigarettes on her body, banging her head against the wall and threatening her with the air gun. The Supreme Court determined, rightly, that these circumstances justified a retrial.

China is putting the brakes on the death penalty. According to Liu Renwen, a legal scholar at the Chinese Academy of Social Sciences, between 2007 and 2011 the annual number of executions in China fell by half. Many violent offenders are now given so-called suspended death sentences, which are invariably downgraded later to life in prison. Such restraint has drawn broad public support.

 …

Interviews conducted by criminologists suggest that international criticism has had an impact as well. In 1977, a mere 16 countries had abolished the death penalty; today 140 countries — over two-thirds of the world’s nations — have done so in law or practice. Chinese legal scholars and judges are fully aware of their country’s role as the outlier.

In 2006 a group of reform-minded justices began formally advocating moderation in punishment. Led by Xiao Yang, then the Supreme People’s Court chief justice, they pushed the maxim “kill fewer, kill cautiously.” The following year, the high court began reviewing all capital cases, creating a strong disincentive for lower courts to hand out death sentences. The substitution in many cases of suspended death sentences — which in practice means offenders spend about 25 years in prison — was the result.

The shift met resistance from hard-liners who warned of a spike in crime. But pandemonium did not ensue. Some criminologists now argue that the harsh campaigns of the past in fact sparked violent crime, by making criminals reluctant to leave witnesses behind.

Readers! Your clairvoyant blog host, Me, totally predicted this in my 2010 book (pp. 234-235):

[China]  has one unified national penal code (adopted in 1979 and modified many times since), and a political structure which insulates ruling elites from popular opinion. Were China’s ruling elites to be convinced that abolition was a desirable step, they would be able to implement it without fearing a formal political backlash. Even if Chinese leaders were not swayed by humanitarian concerns, there is a pragmatic case for the move: abolition of capital punishment by China would generate an avalanche of favorable coverage from the international media, and would be a potent weapon against critics of China’s human rights policies. In par- ticular, China could point to the continued use of capital punishment by the United States to parry American denunciations. Given the sensitivity of Chinese officialdom to critiques of its human rights policies, it would seem that abolishing capital punishment would be a low-cost way to project a more sympathetic image on the world stage.

You can buy this masterpiece by clicking on the box to the right. Whatever the price in your local currency, it's a bargain at twice that price!

Upcoming Conference at Harvard

 Next Monday, I will be participating in an international panel discussion at Harvard on capital punishment with a number of other colleagues in the field, sponsored by the Harvard Institute for Global Law and Policy and the Real Colegio Complutense at Harvard.

It's free and open to the public, so drop by if you're in the area and the subject interests you. The full flyer in .pdf format is here

 

 

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German Piece on Criticism of Religion in the USA

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At the invitation of the Friedrich Naumann Foundation, which is associated with the German Free Democratic Party*, I wrote a piece on the laws concerning criticism of religion in the USA. Short version: there pretty much are no enforcable laws against criticizing religion in the US. The longer version is in the book, in German. I tried to keep it relatively non-technical.

There are also entries from many other writers on freedom of opinion concerning religion in other legal orders, including Russia, France, and the Islamic world. I haven't had a chance to read the other articles yet, but they look interesting.

The book has just come out and is available in written form and by download (pdf) from the Foundation's website. If you happen to read my piece, let me know what you think.

 * Does not imply agreement or disagreement with this political party's views, natch.

LTO Quotes Me on the Recent Court Decision on NSA Spying

The Legal Tribune Online asked my opinion about the recent federal district court decision on NSA spying, Klayman v. Obama (pdf). The article's in German, so I'll give my two cents here briefly in English.

  1. This is just a decision on a motion for a preliminary injunction (einstweilige Verfügung). The plaintiff, half-bonkers American legal gadfly Larry Klayman, asked the court to stop the NSA spying on him while the underlying merits of the legal issues were resolved. To win this preliminary phase, he had only to show a 'likelihood' of success on the merits.
  2. The judge decided to 'stay' (delay) the injunction from taking effect until the government has had a chance to appeal. Thus the NSA can continue spying in the meantime.
  3. Even if Klayman wins his case, the end result would be only to force the NSA to stop spying on him (and one other plaintiff) — although, as a practical matter, the logic of the court's ruling would apply very broadly, since Klayman doesn't allege that he was targeted in any special way.
  4. The district court is the lowest in the food chain. The government will certainly appeal this ruling to the D.C. Circuit Court of Appeals, which is one of the more conservative in the nation.
  5. There is a 1979 Supreme Court decision, Smith v. Maryland, which holds that Americans don't have a legitimate interest in the privacy of the basic 'metadata' of their phone records (who called whom when). Granted, there are huge differences between Smith – which involved only one single pen-register-tap — and the current, omnivorous NSA spy program. However, a court could well conclude that Smith means the NSA program is constitutional, and if Smith needs to be updated or rejected, only the Supreme Court has the power to do that.
  6. As for any foreigners who may read this post, I regret to inform you that this decision applies only to Americans on American soil. Foreigners located abroad have almost no rights (pdf) under the U.S. constitution.

This is not to criticize the district court's decision — it's unusually well-written and convincing. Still, the best argument doesn't always win the day, not by a long shot. Therefore, I give the district court decision about a 40% chance of surviving on appeal. I hope I'm wrong…

Interview about the Zimmerman Case on BR Radio

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Here's an interview I gave to Bavarian Radio yesterday (in German) which was broadcast this morning. My legal analysis of the Zimmerman case, plus a mild howler.

 Me on BR Radio

In this post I clear up a misconception that I've encountered among many Germans, who seem to think that Zimmerman got out of the car, followed Martin, and then executed him in cold blood for no reason. The very fact that Germans believe that this sort of thing would go completely unpunished in the United States shows how grossly distorted the German image of America can be.

As the photos above show, there was a physical confrontation between Martin and Zimmerman before the shot was fired. Zimmerman's injuries were not life-threatening, but they do show that there was a chaotic, physical fight before the shots were fired. The jury found that Zimmerman fired his gun because he reasonably feared, in the precise words of Florida law, 'imminent death or great bodily harm to himself'. The fact that Zimmerman provoked the confrontation by following Martin was only of secondary relevance from a legal perspective, whatever you think of it from a societal perspective.

This is not to say that I endorse Zimmerman's actions. It's a simple plea for Germans to inform themselves more fully than their own media typically does before making a judgment. And if you think that German law on self-defense is very different, you might want to read this court decision (g) in which a German court ordered the complete release of a member of the Hell's Angel's motorcycle club who shot and killed a German SWAT-team member without warning (except for yelling 'fuck you') as the officer was trying to enter his apartment and conduct a search. The court found that since the Hell's Angel's member was in his home and feared for his life because the Bandito gang wanted to kill him, his mistaken assumption that the break-in was being done by the Banditos, coupled with the fluid and unpredictable situation, allowed the biker to immediately shoot to kill without firing a warning shot or announcing his intentions.

Of course there are differences between the two cases, but they certainly show that German law also permits you to use deadly force to protect yourself if you believe you're under threat — and that the law recognizes that in a fluid, fast-moving situation like a physical confrontation, you cannot expect participants to obey all the niceties of civilization.