Month: October 2019

With a little over a year to go before the next presidential election, politicians, pundits, and political players have grown comfortable yelling “treason” in each other’s faces. That’s a problem. Except in those rare circumstances when the charge is accurate, tagging your enemies as traitors lazily bypasses debating their ideas and actions and goes straight for accusations of betraying the nation on behalf of its enemies to such a heinous degree that it warrants punishment with a bullet or a noose.

It’ll be interesting to see whether, after the votes are counted, the side that comes up short will be comfortable conceding to “traitors”—or if the victors will overlook the “treason” of the vanquished.

One of the sillier examples comes from Paul Krugman, former economist and current stroker of Manhattanite prejudices. “Big Finance, given the choice between treason and a wealth tax, chooses treason,” huffed Krugman.

Were these big financiers defecting to North Korea or diverting support to ISIS? Nope! Krugman, a high-profile New York Times columnist, saw treason in the disinterest many Wall Street Democratic donors have in his preferred presidential candidate, Sen. Elizabeth Warren (D-Mass.).

If failing to support the “right” candidate constitutes treason, then it’s no surprise that politicians feel so free to level the same charge when referring to each other.

“Donald Trump is a traitor,” hissed super-wealthy Democratic presidential hopeful Tom Steyer, linking to recent news about President Trump’s abusive arm-twisting of Ukrainian President Volodmyr Zelensky. Trump wanted his counterpart’s guarantee of an investigation into potentially corrupt dealings with the Ukrainian natural gas company, Burisma, involving leading Democratic presidential hopeful Joe Biden and his son, Hunter.

“It’s treason,” agreed Rep. Peter DeFazio (D-Ore.). Long-shot Republican presidential challenger Bill Weld concurred that Trump had committed “treason, pure and simple.”

Not that Trump can’t give as good as he gets. “Spies and treason” is how he referred to whistleblower leaks about his dealings with Ukraine’s president. Trump also suggested that Rep. Adam Schiff’s (D-Calif.) comments about presidential conduct could be grounds for arresting the congressman for treason.

Rep. Adam Schiff illegally made up a FAKE & terrible statement, pretended it to be mine as the most important part of my call to the Ukrainian President, and read it aloud to Congress and the American people. It bore NO relationship to what I said on the call. Arrest for Treason?

— Donald J. Trump (@realDonaldTrump) September 30, 2019

It wasn’t the first time he lobbed the treason insult, having unleashed it against former FBI officials James Comey and Andrew McCabe for allegedly abusing their power to aid his political opponents. He also slammed Democrats who refused to applaud his State of the Union address for “treasonous” behavior.”

All of this would be little more than stupid and unseemly if “traitor” was just the new pronunciation of “jerk,” but it’s not. Treason is a specifically defined crime named in the Constitution, and one that potentially carries the death penalty.

“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort,” the Constitution specifies.

Referring to that definition, Professor Steve Vladeck of the University of Texas School of Law warned last year (even before accusations of treason had reached current levels of popularity) that “treason is not defined by the gravity of the offense; it’s a crime indicating the clear support our enemies during wartime, period.” He called for a “long overdue moratorium” on calling people traitors.

Conspiring with another country may break all sorts of laws, but it’s not treason unless the United States is actually at war with that country, agrees Professor Carlton F.W. Larson of the University of California. Likewise, “leaks might violate other provisions of federal law, but they are not treason.”

That means that dirty political shenanigans don’t rise to the level of “treason.” Neither does failing to clap for a politician’s speech. Nor does—and this deserves emphasis—declining to open your checkbook for political candidates favored by excitable pundits.

Treason is so narrowly defined cautions Vladeck, because “for much of the pre-revolutionary period in England, the accusation was a means of suppressing political dissent and punishing political opponents.” To accuse somebody of treason was to put them beyond the pale and delegitimize anything they might do or say.

Unfortunately, that’s exactly where we are in America’s political life.

Over 40 percent Americans now say the political opposition is “downright evil” and many think the country would be better off if opponents “just died,” according to a paper published this year by Nathan P. Kalmoe and Lilliana Mason, political scientists at Louisiana State University and the University of Maryland. To deal with such evil opponents, “violence would be justified” if the opposing party wins the 2020 presidential election say 18 percent of Democrats and 13 percent of Republicans. Anticipating an election win increased support for violence among strong partisans in the study.

So, throwing the word “treason” around, unmoored from its actual meaning, is a weapon for delegitimizing political opposition and dissent. It’s a way of rallying the troops and telling them they don’t need to respect the enemy—they just need to destroy them.

This is not a new tactic; it’s too common, and very destructive of political systems.

“Perceptions of the out-party as a threat to the nation or way of life if they were to come to power or stay in power lead to violation of democratic norms,” write Jennifer McCoy and Tahmina Rahman of Georgia State University and Murat Somer of Turkey’s Koç University in “Polarization and the Global Crisis of Democracy,” published last year in American Behavioral Scientist. “Government supporters grow increasingly tolerant of illiberal actions to tamp down dissent and of extra-constitutional (or at times anti-constitutional) measures to extend an incumbent’s term in power. Oppositionists contemplate extra-constitutional (or at times anti-constitutional) measures to remove the incumbent group from power…”

The United States hasn’t gone that far, yet, and hopefully never will. But calling somebody a traitor certainly paints him or her as “a threat to the nation or way of life.” They don’t just have different ideas—they’re existential dangers.

And once you’ve acquired the habit of tagging your opponents as traitors and their political conduct as illegitimate, how do you gracefully concede a lost election to them? Or, should you be the winner once the votes are counted, how do you sit back and let your enemies continue their allegedly treasonous behavior in preparation for someday taking office?

Republicans and Democrats, politicians and pundits, are gleefully backing each other into a corner in their scramble for victory in next year’s elections and their grab for the sort of total victory that healthy democracies just don’t offer. Having smeared each other as traitors and done their best to delegitimize disagreement, they’re going to have a hell of a time extracting themselves from that tight spot. Unfortunately, the rest of us are stuck in that corner with them.

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To clear space for a new minor league baseball stadium, the city of Worcester, Massachusetts, is using eminent domain to condemn and seize two successful businesses. City officials then plan to put Worcester’s remaining taxpayers on the hook for more than $100 million to build the ballpark and do some adjacent redevelopment. It’s hard to say which part of the plan is worse: stealing private land or wasting public dollars.

Worcester initially tried to buy out the owners of an auto glass repair shop and a cannabidiol retailer, but the businesses turned down offers of $310,000 and $265,000 respectively, according to court documents. When the property holders refused, Worcester officials resorted to eminent domain to get their way.

The city council approved the takings in April—booting out the businesses despite their owners’ objections—and a groundbreaking for the city-owned stadium project went ahead in July. But the eminent domain effort could take months to finalize in court—and that could force the city to delay the opening of the new stadium, planned for spring 2021.

The ballpark will be the new home for the Boston Red Sox’s top minor league affiliate. The team is relocating from Pawtucket, Rhode Island, where it has played since 1970, after spurning an offer from Rhode Island officials to use a measly $38 million in public funds to upgrade the 76-year-old stadium where the team currently plays. Instead, the “Woo Sox,” as local media have taken to calling them, will get a shiny new ballpark, and Worcester taxpayers will get a pile of debt.

The $70 million public cost for the stadium makes the new Worcester ballpark one of the five most expensive minor league projects in American history, according to Victor Matheson, a sports economist at the College of the Holy Cross, which is also in Worcester. And that price tag doesn’t include another $30 million in public spending on stadium-adjacent projects, including a city-owned hotel, or the additional $34 million the team will pay toward the stadium’s cost.

When the Worcester Business Journal surveyed 10 experts about the viability of the city’s plan, nine of them expressed skepticism that the ballpark would pay for itself. The only dissenter was a Smith College economist hired by the city to make the case for the project.

The stadium might spruce up the downtown, Matheson says, but the math doesn’t add up. “Is this going to make the city of Worcester richer? There’s no reason to think that it will.”

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The Supreme Court’s new Term will begin next week with a fascinating criminal law case, Kahler v. Kansas, that asks a simple question: Can a state eliminate the insanity defense?  I think Kahler may prove quite important for the field of criminal law, and I wanted to explain why.

Let me start at the beginning.  Specifically, let’s start in the first week of 1L year, when most law students are introduced to criminal law.  Crimes, they learn, must include an actus reus—a guilty act.  Crimes must also include mens rea—a guilty mind.  For a crime to occur, the actus reus and mens rea must happen concurrently.  That’s been the traditional law of crimes going back to the common law hundreds of years ago.

Around the same time that 1Ls are learning this, they are also learning the modern arrangement that crimes are enacted by legislatures rather than courts.  What is a crime is now up to legislatures, not judges.  And this creates a problem.  The traditional requirements of actus reus and mens rea are common law rules.  Courts announced them hundreds of years ago in a time when courts largely defined what was a crime.  When courts define what is a crime, the courts were saying, they will define them in ways that include a guilty act and guilty mind requirement.

But in the modern world, in which legislatures define what is a crime, the common law rules for what is a crime are no longer obviously binding.  What matters today is the constitutional limits of crime definitions.  In a modern system, legislatures can legislate in the zone of whatever the constitution allows.  So that naturally raises a question: What are the constitutional limits of crime definition?

There is surprisingly little law answering that question.  There is some, but not that much.  That’s surprising, I think, because the constitutional limits on crime definition are fundamentally important.  But there’s also a reason for the relative absence of caselaw.  Legislatures enact lots of new crimes, but they usually use preexisting tools to get there. And when legislatures enact criminal laws that may on their face seem like significant departures from traditional approaches, courts construe the new laws to reflect traditional common law principles.

That brings us to the new case, Kahler v. Kansas.  The state of Kansas has effectively eliminated the insanity defense.  “Mental disease or defect is a defense to a prosecution under any statute,” Kansas law says, only if it negates “the mental state require[ment] as an element of the offense charged.” Kan. Stat. Ann. § 22-3220 (2009).  In other words, a defendant is always free to show that his insanity explains his innocence of the crime charged.  But that’s the only way insanity can be used. It’s not an independent defense.

Here’s a hypothetical to see the difference.  Imagine a person suffering from mental illness pushes a victim off a bridge.  The victim falls to his death.  The pusher is then charged with intentionally killing another human being.  At trial, the defendant cannot argue to the jury that he is not guilty by reason of insanity because his mental illness impaired his ability to identify right from wrong or to conform his conduct to the law.  For example, he can’t argue that he heard voices telling him to kill the victim that he couldn’t ignore.

Instead, the defendant can only argue to the jury that his mental illness is the explanation for why he lacked the intent to kill and is therefore not guilty of an intentional killing.   For example, he could argue that his mental disease meant that he wrongly believed his victim could fly: Because he didn’t realize that pushing the victim off the bridge could harm him, he didn’t cause the victim’s death intentionally.

The facts of Kahler are stark, even though they don’t technically matter much to the legal question.  The defendant murdered his estranged wife, his two daughters, and his wife’s grandmother.  At trial, he was not permitted to put on evidence that, as a result of mental disease or defect, he was unable to recognize the wrongfulness of his acts or conform his conduct to the law.  He argues that Kansas’s repeal of the traditional death penalty violates both the Due Process clause and the Eighth Amendment’s ban on cruel and unusual punishment.

What’s interesting to me about the briefing in the case is how much is up for grabs.  You can think of different ways the Court might approach the question.  Consider these four:

(a) Deviation from the Common Law. You might ask if Kansas’s effective elimination of the death penalty is a sharp deviation from common law approaches.

(b) Deviation from Framing Era Understandings.  You might ask if Kansas’s approach would have been considered out of bounds under the original public meaning of the Constitution, either at the time of the ratification of the Eighth Amendment (in 1791) or of the Fourteenth Amendment (in 1868).

(c) Deviation from Current Practices.  You might ask if Kansas’s approach is a sharp outlier from prevailing trends in state law approaches to the insanity defense.

(d) Deviation from Criminal Law Theory.  You might ask if Kansas’s approach is inconsistent with the retributive and deterrent theories of punishment that today are understood to justify punishment and impose limits on the scope of punishment.

Under any of these approaches, or combination of approaches, you then need a theory of how far a deviation from those standards is permitted.  The Court could be pretty deferential, allowing deviations as long as they are not particularly large (which might avoid the need for lots of judicial line-drawing but also limit the Court’s role).  Or the Court could be more strict, allowing only small deviations (which would ensure a significant role for the Court but could also require difficult judicial line-drawing).

And whatever approach the Court applies here, its approach presumably will shed light on what other crime and defense definitions are constitutionally required.  Kahler might be a case 1Ls learn not just when they cover the insanity defense but also when they learn about the constitutional limits of crime definition more generally.

The case will be argued next Monday, October 7th, on the first day of the new Supreme Court term.  As always, stay tuned.

 

 

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The Knoxville, Tennessee, City Council has voted 8-1 to ask Mayor Madeline Rogero to ban gun shows on city-owned property. Rogero had already announced she would forbid gun shows on city property. She is leaving office at the end of the year, but both of the candidates running to replace her also support the ban.  City-owned Chilhowee Park has hosted gun shows for decades. “What is ironic is for a long time the city was asking me to do more shows at Chilhowee Park because it is a super-popular event with a huge economic impact,” said Rex Kehrli, who has run those gun show for about a dozen years.

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