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Virginia Legislatures Block Judicial Appointment of Gay Prosecutor

In a move which I’m sure their children will look back upon with great pride, Virginia lawmakers have blocked the appointment of a well-regarded prosecutor to the state’s bench.

Tracy Thorne-Begland serves as Chief Deputy Commonwealth Attorney in Richmond, and is a former Navy fighter pilot. By all accounts his professional record is impeccable, and his supervising attorney stated that he would have made an “outstanding judge.” Nonetheless, the state legislature voted 33-31 to block his appointment, and all of the votes against him came from Republicans.

So, why did state lawmakers choose to deny a judicial appointment to an extremely well-qualified attorney with an incredibly impressive professional record? Because hes gay.

Most of the people who voted against him didn’t even bother with a pretext. They claimed that the fact that he is gay and the fact that he is an advocate for gay rights causes meant that he couldn’t be an impartial judge.

This argument is, to be frank, completely absurd.

The notion that a person could not be an impartial judge because they served as activists in the past makes absolutely no sense. After all, every judge in the world is a person, and every person has opinions on a wide range of issues. You probably wouldn’t have heard anyone complaining if this judicial candidate had previously advocated for, say, environmental causes, or equal rights for African-Americans (or any other racial group). Nobody would speculate that such a record of advocacy would lead to someone pressing an “activist agenda” from the bench.

While this individual case is certainly unfortunate, and I imagine that the state will, sooner or later, see it for the embarrassment that it is; I think in some ways it’s a sign that the anti-gay rights movement is in its death throes. This reeks of a group of anti-gay forces becoming increasingly isolated and in the minority, and are simply lashing out at progress for LGBT individuals in the only way they know how: keeping them out of public life to the greatest extent possible.

However, recent polls show that public acceptance of LGBT rights, including same-sex marriage, is steadily increasing. Even in relatively conservative states like Virginia, the public probably won’t stand for this type of conduct for much longer.

Unfortunately, however, it appears that Mr. Thorne-Begland has little to no legal recourse. Generally, when it comes to voting to confirm judicial and other appointments, Congress, as well as state legislatures, are free to vote for or against a particular candidate, for any reason they like, and they are under no legal obligation to justify their voting choice (the political consequences of these votes are another issue entirely, however).

Furthermore, no federal law bans discrimination in employment based on sexual orientation, and while many states in the U.S. do ban such discrimination, Virginia does not appear to be one of them, and given the recent actions of its legislature, it’s doubtful that such a law is likely to be enacted in Virginia anytime soon. And I think that’s a shame.

In this relatively conservative state, Thorne-Begland has amassed quite a few supporters, with the likes of the governor and high-ranking judges calling the vote things like “embarrassing” and “disgraceful.” I tend to agree with them.

So, what can be done about this? Unfortunately, not much, at least in the short term. As discussed above, there is no legal recourse. And despite the fact that I think the lawmakers in this story did the wrong thing, and, frankly, should be ashamed of themselves, I think that the current method of appointing federal (and most state) judges, which involves an appointment by the chief executive (the president or governor), and confirmation by a majority of one or both houses of the relevant legislative body (Congress or the state legislature) is a good way to select judges.

Traditionally, the United States is seen as having three branches of government: the legislative, the executive, and the judicial. While the executive and legislative branches (the President and Congress, respectively) are both more or less directly elected, the judiciary is not. Typically, judges are appointed by elected officials, and usually serve for life (or until retirement or removal by impeachment or other legal procedure).

This means that we have judges who are more or less insulated from the political process: to keep their jobs, they don’t have to campaign. In fact, they don’t even need to be popular. I think this is exactly how it should be: judges should be as free as possible to answer hard legal questions according to their good-faith interpretations of what the law and constitution require, and they should be as insulated as possible from the ever-shifting whims of public opinion and politics. In general, having major constitutional issues resolved by “unelected judges” (a term only used when a judge rules in a way the speaker doesn’t like) has served us pretty well.

It does come at an unfortunate cost, however: legislatures can decline to confirm highly-qualified judicial appointees for terrible reasons.

However, everything we value as a society comes at a cost: not living in a police state comes at the cost of a slightly higher risk of being a victim of a crime, and protecting our rights to privacy and due process entails a slightly higher risk that people guilty of crimes will escape.

Likewise, ensuring that we have an independent judiciary that is as free as possible from judicial pressure means that judges will sometimes be appointed by people desperately clinging to an old set of views, out of step with an ever-growing segment of mainstream society.

Man Held in Jail for 5 Days Without Food or Water Sues Feds

Well, this is embarrassing. A few weeks ago, a young man was arrested by the Drug Enforcement Administration (DEA), and held in a jail cell for five days, with no human contact, food, water, or even a toilet. And this was after he was told that he would be released without being charged, just as soon as the authorities finished up some paperwork on his case.

But when 23-year-old UC San Diego engineering student Daniel Chong sat alone for several hours, he started to get annoyed. As the hours turned into days, he began to fear for his life. After all, going just a few days without water can cause severe health problems, which could quickly become life-threatening.

When he was finally found in his cell, Chong was delirious and weak. He was taken to the hospital, where doctors said he was close to suffering kidney failure, and was so dehydrated that he was having trouble breathing. He had to spend 3 days in intensive care, and was hospitalized for a total of 5 days. I’m no doctor (obviously), but it sounds like he wouldn’t have survived another day or two in that cell.

Indeed, the article linked above indicates that, after a few days, the solitude, hunger, thirst, and fear truly got to him, and he began to lose his mind. He even tried to take his own life by breaking his glasses and cutting his wrist with the broken glass. Thankfully, he did not succeed in this attempt.

Well, he is now suing the federal government for $20 million, to compensate him for this ordeal.

While some people may argue that this is excessive (and if the federal government is smart, it will end up settling with him), and goes well beyond simply compensating the victim for his injuries. However, it’s impossible to put an exact dollar amount on the amount of mental and physical anguish that Mr. Chong must have suffered in his ordeal. What he went through is something I would never wish on my worst enemy.

And if this lawsuit ensures that such blunders never happen again, I’d say it would be worth every penny that the government has to pay out. Because, frankly, the fact that this happened is an absolute disgrace to the federal government, and an embarrassment to all of us.

Think about it: a person (who was ultimately never charged with a crime) almost died of thirst in federal custody, because everyone involved in his arrest and detention apparently just forgot about his existence. Some might say that he was a criminal, and we shouldn’t be shedding any tears for him.

To that I have two responses: first, he was never actually charged with a crime, let alone convicted of one. Second, even if he had been convicted of a major drug-related crime, it would in no way excuse what was done to this man. After all, in this country we generally pride ourselves on the fact that we don’t engage in cruel and unusual punishment. And if starving/dehydrating somebody half to death doesn’t constitute “cruel and unusual” punishment, I’d love to know what does.

Incidents like this harm the legitimacy of law enforcement in the public’s eyes, as well as the legitimacy of government in general. And we seem to be going through a phase where the public’s faith in the government’s ability to (or interest in) doing its job is at a historic low. And these types of incidents certainly don’t help matters.

Now, I don’t think the individual DEA agents involved in this incident left the victim in the jail cell on purpose. It probably was an honest (albeit very serious) mistake. Chances are, they were overworked, and lacked some of the administrative and logistical support they needed in order to keep track of the people in their custody. Such a scenario, in this era of government austerity and across-the-board budget cuts, is easy to imagine.

I think this incident, and similar ones, are partially a symptom of our broken drug laws. The United States imprisons more people than any other country on Earth. A large plurality of the people in federal and state custody in the U.S. were convicted of drug charges – casualties of the “war on drugs” that the government initiated in the 1980s. The fact is, American drug policy has resulted in the incarceration of more people than the system was designed to handle, leading to overcrowding of prisons, skyrocketing costs, and, occasionally, tragic incidents like the one discussed in this article.

While I don’t pretend to have a perfect solution to the overlapping problems of drug abuse and over-incarceration, I think a few simple reforms could reduce these problems significantly. For example, it’s glaringly obvious that our mass-incarceration approach to the drug problem has failed. It has overcrowded the prisons, led to skyrocketing law enforcement costs, and it does not appear to have done much to curb illegal drug use.

A good first step would be to stop relying on prisons as the primary method for dealing with the illegal drug problem, and focusing instead on treatment and rehabilitation programs, which can cost far less than prison, and be far more effective in reducing drug use. Furthermore, I’d like to see possession of small amounts of recreational drugs such as marijuana decriminalized.

Of course, I’m not saying that reforming our drug laws would solve the very separate problem of government incompetence, but by arresting fewer people, the burden on a large number of government employees (such as DEA agents, for example) would be reduced, which would almost certainly reduce the occurrence of incidents like this one.

13 Charged in Deadly Hazing Incident

Most of us have heard of hazing. Some see it as an essential element of being admitted into a new social group, which could be anything from a college fraternity to a bridge club.

Some might claim that hazing – any type of ritual that involves putting a new initiate to a social group through some type of physical and/or psychological ordeal – is deeply ingrained into human psychology, and that we often engage in it at a subconscious level, without even being aware of it.

Indeed, most of the time, rituals or behaviors that could reasonably be classified as “hazing” are pretty harmless.

However, there are cases where hazing rituals, particularly when alcohol and testosterone are involved, can go way beyond simple pranks, and can become dangerous or even deadly. In one tragic case, a drum major in a marching band at a Florida university died during a hazing gone awry. 13 of his former band-mates are now being charged in his death, with crimes including both felony and misdemeanor hazing.

The exact details of the victim’s death are not entirely clear. It’s known that he collapsed on a bus while returning from a football game in Orlando, and that the coroner ruled his death a homicide. He died of internal bleeding caused by blunt-force trauma. The coroner also found that he had suffered multiple severe blows. From what it sounds like, he was essentially beaten to death.

Whatever the exact details of the incident might be, it’s clear that something went very, very wrong.

Hopefully, as more information leading up to the trial comes to light, we’ll learn more about exactly what happened.

Over the last decade or so, a few high-profile incidents of hazing involving high school and college students have brought the issue to national attention, and led to many states passing laws specifically targeting the practice.

While the general criminal law of almost every state would cover the conduct that can occur in the most extreme hazing incidents (including torture, battery, and sexual assault), anti-hazing laws are more targeted, and are designed to eliminate all violent hazing, and preventing instances where the conduct in a hazing ritual was clearly deplorable, but did not quite rise to the level of criminal conduct under a state’s existing criminal laws.

Additionally, these laws send a message that hazing of any type, even “harmless” hazing, is not something that society should tolerate anymore. After all, many hazing incidents that ended in death or serious injury probably did not start out with that as the intended result. But when you get a bunch of (usually) young men together, and mix in alcohol, machismo, and an atmosphere that at least tacitly encourages the group to violently gang up on an individual, you’ve got a recipe for disaster.

This type of conduct goes far beyond “boys being boys.” Some might say that hazing is simply part of human nature, and that attempting to suppress it is pointless. It may be true that conduct such as hazing is a manifestation of the darkest, basest aspects of human nature, but part of it nonetheless. But the same can be said for crimes like rape and murder, and nobody will seriously argue that the law shouldn’t try to curb such behavior.

After all, one of the main reasons for the existence of a legal system is to elevate society above the baser impulses of its individual members. Laws against hazing, I think, are an example of one of the positive steps we can take to that end.

Obviously, these laws need to be sensible, and should probably only apply when a hazing incident actually results in somebody being harmed. I’m not advocating a “zero-tolerance” policy, in the traditional sense of the term. After all, we’ve all heard stories where laws that are intended to “get tough” on a given problem, whether it’s illegal drugs, weapons in schools, sex crime, etc. have been stretched to absurd lengths, sometimes ruining the lives of people that the laws could not possibly have been intended to affect.

I don’t want to see a situation where people are going to jail for drawing things on the face of a passed-out fraternity pledge, for example. But, if anti-hazing laws make it a little bit easier to prosecute the people involved in incidents that result in death or serious injury, I think they’re a good idea, on balance.

States that have not done so already should begin adopting anti-hazing laws as soon as possible.

Is Real Legal Education Reform Coming?

For the last few years, there’s been a lot of talk about the current state of legal education. And not much of it has been positive. First, there’s the long-running criticism that law school does not do much to teach students about the actual practice of law. When pressed, most law professors and law school administrators will admit this, and claim that instead they teach students to “think like lawyers,” because there are so many different legal rules and details of practice that it would be impossible to provide students with any meaningful exposure to them in the three years of law school.

However, with the legal job market being incredibly competitive right now, law firms, corporations, and government agencies are far less inclined to hire new law school graduates, on whom they will have to spend a significant amount of time and money training, when there are thousands of experienced lawyers who have been laid off, who do not need nearly as much training as a recent graduate. This makes it that much harder for new law school grads to find a job.

On top of that, the state of the overall legal job market is, to put it bluntly, abysmal. While the economy is recovering (albeit slowly), and most employment sectors are gradually ramping up hiring, the legal job market, which was incredibly hard-hit by the 2008-2009 recession, has been slower to recover than most other sectors.

This has led to tens of thousands of law school graduates entering the workforce with student loan debt often reaching six figures and dim job prospects. Because most people go to law school with the expectation of being able to land a good job after they graduate, this has led to some jobless law school graduates ending up kind of, well, bitter.

Some of these students are focusing their energy into action, creating a movement to reform legal education. Their main grievances include skyrocketing law school tuition, a glut of law schools producing far more new lawyers every year than the job market can possibly absorb, and what they claim are misleading employment and salary statistics released by law schools. Many of these criticisms have expanded to cover higher education in general, as well as the fact that student loans cannot be discharged in bankruptcy.

Because the American Bar Association is responsible for accrediting law schools in the United States, and can therefore exert large amounts of pressure on them, many people calling for the reform of legal education have targeted the ABA, rather than individual law schools – the idea being that the ABA could force the law schools to change their practices by changing its accreditation requirements.

The ABA has apparently been listening, and has created a list of proposed changes, such as releasing more detailed job and salary statistics each year. They have opened these proposed changes to public comment, and it appears that the general public, to the extent that it cares, is largely supportive of these measures.

However, the new rules are pretty watered-down, compared to what some people in the law school transparency movement would like to see. The rules, if adopted, would require law schools to place more information on their websites, giving prospective more information on job placement, bar passage rates, and retention rates on conditional scholarships, among a few others.

All of this is happening against the backdrop of a class-action lawsuit against several law schools brought by former students claiming that they were outright defrauded by the law schools they attended, by being presented with deliberately misleading employment and salary statistics.

This lawsuit was recently dismissed by a federal judge in New York, but the plaintiffs are appealing that decision, and the case is likely far from over.

While I think more transparency in law school admissions is certainly a good thing, and I actually think that the revisions proposed by the ABA could go much further than they do, I’m not sure how I feel about this lawsuit.

First of all, I have doubts that it will prevail. Proving that somebody engaged in deliberate fraud is difficult, especially with something like job statistics, because most schools count every graduate who has any type of job as “employed,” even if they have a law degree and are working in a coffee shop. This may be a little underhanded, but it’s technically accurate.

Second, the public’s perception of lawyers is not exactly positive. A common joke is that 90 percent of lawyers give a bad name to the other 10. When they hear that new lawyers are having trouble getting jobs, the reaction of a large sector of the public is probably going to be something like “I guess you should have learned how to do something useful. Cry me a river.”

Finally, the general public already views lawyers (and, by extension, lawyers in training) as litigious, but also as fairly intelligent and sophisticated. So, the argument is likely to go something like “back when you were a wannabe lawyer, you should have understood the risks of taking out thousands of dollars in student loans to get a degree that doesn’t guarantee a job.” While, in some cases, the fact that a plaintiff is a highly sophisticated individual (or, more often, corporation), will make it harder to prevail in a fraud case, on the grounds that they should have known better. However, it’s important to remember who these plaintiffs are: they’re recent law school graduates, arguing that they were defrauded before they attended a single day of law school classes. When they made the decision to go to law school, most of them were straight out of undergrad, and in their early to mid 20’s.

Think back to when you were about 22 years old. Do you think you were in a position to make perfectly intelligent and rational decisions when the ramifications of these decisions, whether positive or negative, might not be apparent until years, or even decades, in the future? Chances are, the answer is “no.”

So, what should be done about this? To be perfectly frank, I have no idea. The problems with law school are, in many ways, symptoms of a larger problem with higher education in general. As with any complex problem, there are no easy solutions. However, I think providing consumers (including consumers of educational services) with more information is probably a good start.

Border Patrol Sued Over Traffic Stops

With arguments over Arizona’s controversial immigration law wrapping up in the Supreme Court last week, the debate over immigration (both legal and illegal) into the United States seems to get more heated every day, and more states considering immigration laws similar to Arizona’s, a recentlawsuit (also reported here) may have flown below your radar.

The ACLU is suing the U.S. border patrol agency Immigration and Customs Enforcement (ICE) over traffic stops that they allege are racially biased and overly-aggressive.

While the basis for many states passing their own immigration laws is the claim that the federal government is not doing enough to stem illegal immigration, the numbers show that during the Obama administration, deportations of illegal immigrants have reached an all-time high, and staffing of border patrol agencies has increased. Furthermore, immigration authorities have placed a heavy priority on deporting illegal immigrants who have committed violent crimes while in the U.S. Anyone who prefers a “get tough” strategy for dealing with illegal immigration should be thrilled at this information, but, for some reason, it largely goes unreported in the media.

While anti-immigrant forces may not have noticed that the Obama administration is being more aggressive against illegal immigration than any other president in decades, people who advocate for the rights of immigrants, particularly the basic civil liberties of undocumented immigrants, certainly have noticed this trend, and, as one might imagine, are not happy about it.

The issue in this lawsuit mostly has to do with racial profiling – the practice of law enforcement agencies targeting members of a particular racial or ethnic group based on the belief that they’re more likely to have committed a crime.

This practice is unlawful in almost any context. The lawsuit asks the court to issue an injunction against the border patrol barring them from engaging in any traffic stops until they have undergone special training on how to avoid racial profiling.

The law governing civil liberties and immigration is a little different from the privacy and civil rights laws that apply in almost any other context, and it can be confusing, both for ordinary individuals, and for the officers charged with enforcing it. When at or near a border crossing, border patrol agents have significant latitude in stopping and searching vehicles when they have any suspicion that violations of immigration laws are occurring.

However, when far away from the border, their power is more or less the same as any other police officer. If they want to stop a vehicle, they have to have a reasonable suspicion that unlawful activity is afoot.

This case was filed in Washington State, and it’s not clear from the articles I’ve found where the traffic stops took place. It’s possible that they occurred near the border with Canada, which is a major entry point for illegal immigrants, which receives much less attention than the U.S.-Mexico border.

In its lawsuit, the ACLU is alleging that such racially-motivated traffic stops are becoming increasingly common, as the U.S. tries to improve security along the northern border, which is much longer than the U.S./Mexico border, and, compared to that border, has been ignored by immigration authorities in the past.

While I am fine with enforcing our current immigration laws (including the deportation of illegal immigrants, with a particular focus on those who have committed crimes in the U.S.), I believe that the constitution, including the protections in the Bill of Rights, should apply to everybody who is in the United States, or otherwise under its jurisdiction.

And I think that basic notions of due process and equal protection should apply when enforcing immigration laws. Call me crazy, but I don’t think it’s unreasonable for the legal protections we would readily extend to a serial killer to also apply to a person who is physically present in this country without the correct paperwork, because they want to make a better life for themselves and their family. But I guess that’s a radical position in this day and age.

Reading the comments on some of the articles covering this story is kind of upsetting. There are a lot of people saying things to the effect of “hey, ACLU, just let the officers do their jobs!” or “who cares about the ‘rights’ of a bunch of illegals?” etc., etc.

Putting aside the fact that the people filing this lawsuit are American citizens, I think the best test of our commitment to the rule of law and the Bill of Rights is how consistently we apply it to everybody, especially the least popular and most vulnerable groups of people.

And action through the judicial branch of government (i.e., lawsuits) is often the only way to ensure that the other two branches of government live up to the promise of the constitution and Bill of Rights.