Reexamining the death penalty

May 5th, 2014 § 0 comments § permalink

The execution of Clayton Lockett on April 29, 2014 calls for serious reexamination of the death penalty.

Lockett was to be executed for his role in a rape and murder of an 18 year old woman. Lockett reportedly writhed for close to an hour as executioners struggled to make the cocktail of drugs enter his body or otherwise work. The execution was called off, but Lockett eventually died of a heart attack soon after.

The Kafka-esque brutality of Lockett’s execution was heightened by the use of drugs, needles, and lab coats. Previous to his execution, Oklahoma had denied Lockett’s request that the state disclose the contents of the cocktail used to kill him. One becomes reminded of the medical experimentation done by tyrannical regimes elsewhere, outlawed under international law.

As the Second Circuit has recognized, “[t]he medical trials at Nuremberg in 1947 deeply impressed upon the world that experimentation with unknowing human subjects is morally and legally unacceptable.” Abdullahi v. Pfizer, Inc., 562 F. 3d 163, 179 (2d Cir 2009).

Even death penalty proponents should be frightened at the prospect of a state using untested drugs on citizens in order to kill them, a policy which may amount to torture, a violation of the 8th Amendment’s prohibition on cruel and unusual punishment, or a violation of international human rights law, among others.

At minimum, if a state employs a death penalty, it must employ a far higher standard of proof against a criminal defendant – guilty beyond a “shadow of a doubt” seems like a more appropriate standard than the “reasonable doubt” standard usually employed.

International law is moving towards the direction of outlawing the death penalty altogether, a position that is worthy of serious consideration. There is little or no evidence that the death penalty prevents crime; it is incredibly expensive to maintain; it falls disproportionately on people of color; and it permits the state to kill citizens in a manner that is increasingly questionable and disturbing.

In modern societies, the death penalty is not really about “preventing crime”; if it were, then more countries would readily employ it. Rather, the death penalty is about the use of state power in ways that create fear. Citizens of democracies must face the brutal reality that permitting or condoning the death penalty dehumanizes their country and demeans individual rights. This is why the death penalty is increasingly outlawed. The duties of a civilized state are the promotion of life and liberty: the protection of individual freedoms and the provision of education and health care, among others. Such duties, by definition, can never include the power of death.

Tech needs a strong California

April 5th, 2014 § 0 comments § permalink

I don’t agree with venture capitalist Tim Draper’s plan to split California into six different states. But I do think there is a lot of value in thinking and imagining different types of political structures for California.

California doesn’t need to be split up. California needs to be strengthened. In fact, a thriving tech industry requires a strong California.

Strengthening the UC system, for example, would produce more innovation and expertise in engineering and the sciences.

A stronger California health care initiative — perhaps a single payer California system — would encourage entrepreneurship and help mend the frayed social fabric.

Prison reform, desperately needed, would place people back in jobs and reduce social costs, again strengthening the economy and helping tech to thrive.

Instead of taking California apart, Californians should be thinking about how to put California back together. And the tech sector, of which Draper is a part, can play a critical role in making this happen.

Senate report paints grim picture on torture

April 4th, 2014 § 0 comments § permalink

While the Senate moved only yesterday to declassify some of its report relating to the CIA’s use of torture during the Bush era, contents of the report have already been leaked. They paint a grim and disturbing picture of the crimes that were committed by government agencies at least in the previous decade.

These crimes include conduct that amounts to torture. CIA officials reportedly destroyed evidence of their use of torture, even though publicly they claimed that the use of so-called “enhanced interrogation techniques” provided actionable evidence with respect to terrorism.

The information disclosed in the Senate report would provide more than a sufficient basis for a more formal inquiry by the United States Department of Justice, or even by state legal authorities who could prosecute officials for state crimes, to the extent such conduct was criminal under state statutes, with respect to whether Americans engaged in torture in the last decade.

Without UN approval, a US strike on Syria is illegal

August 31st, 2013 § 0 comments § permalink

It is rare when there is such clarity in the law, but the following is black letter:

Without United Nations approval, an American attack on Syria is illegal and constitutes an act of aggression.

And if Obama orders such a strike without a justification in law, he will be committing the crime of aggression.

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It is like the difference between killing someone in self defense and killing someone with premeditated intent.

The first is not a crime and is a complete defense at common law.

The second is a most heinous of crimes and carries the penalty of death.

There are some who argue that the use of chemical weapons by Syria requires an American military response.

These people’s hearts are in the right places, but they are akin to the person who only holds a hammer and thus sees everything as a nail.

What right does the United States have to unilaterally use violence and kill more innocents in a country that is already devastated by civil war?

What right does the United States have to act outside the legal framework it created to govern the use of violence at the international level?

Don’t get me wrong: the use of chemical weapons in Syria is repugnant and in itself is illegal.

But a unilateral cruise missile strike by a country half-a-world-a-way, without proper legal authority, is a pointless and ill thought response.

In fact it is a response that seems designed simply to cause more instability in the region.

If the Mexican government used chemical weapons against drug lords, and China wanted to unilaterally launch missiles against Mexico without UN authorization, my guess is that most Americans would consider the Chinese action bizarre, arrogant, unnecessary and even provocative with respect to United States security.

It is a deeply bad idea for anyone – a person or a country – to engage in a lawless act of violence. It makes the world more unstable and sets precedent for other countries, one day, to engage in their own acts of aggression. It is short-sighted, highly questionable at a practical level, and counter-productive with respect to international governance.

Why are whistleblowers punished, but not wrongdoers?

July 31st, 2013 § 0 comments § permalink

It is a strange time to be following the American legal system.

It is a time when the US Government is engaged in an “unprecedented war on whistleblowers.”

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Yet the people caught engaged in wrongdoing — whether it is the people who initiated unconstitutional domestic spying, or who engaged in war crimes overseas — are not prosecuted.

Since 2003, when the United States invaded Iraq, a mountain of information has been disclosed to the public which indicates that the war was planned and the public deceived about the war.

Hundreds of thousands of people were killed and injured; millions displaced; families torn apart; lives upended.

A small group of people caused this damage. Where is their trial?

People were tortured during the Iraq War. Where are those trials?

Drones have killed American citizens without warrants, without due process under this Administration. Where is that trial?

Information has recently been disclosed that a government agency is violating the Fourth Amendment on a daily basis. Where is the trial for these activities?

In 1822, James Madison, the chief architect of the Constitution, wrote, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

If whistleblowers break laws to reveal wrongdoing, put them before a jury. But the law should not stop with the whistleblowers. It must then move on to the wrongdoers, and it should put the wrongdoers before a jury as well.

A government which insists on trials for whistleblowers, but does nothing about the wrongdoers — however exposed — is a government that insists on secrecy over accountability, and lies over truth. It becomes a government that rules by whim instead of law. This is not the America that Madison wanted. It is not the America we should become.

America’s criminal justice system: completely failing

July 14th, 2013 § 0 comments § permalink

America’s criminal justice system is failing to provide justice.

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Let’s talk about these failures:

1) The prosecution of Edward Snowden. Edward Snowden has done a great service to the People of United States in revealing potentially criminal and unconstitutional conduct by the government.

He has been successful in starting a conversation about government practices — practices which are defended in the name of terrorism almost thirteen years after 9/11.

The response of the government, from the Department of Justice, has been to shoot the messenger and to indict Edward Snowden for revealing activities that go against the core of the protections provided by the Bill of Rights.

In fact you have two law professors writing in the New York Times, one from Stanford and one from the University of Virginia, saying that the NSA activities are “criminal.”

So these are allegedly criminal activities, and the response from the Department of Justice has been to go after the person revealing the activities instead of the ones engaging in the allegedly criminal conduct.

2) California’s prison system. California is a beautiful state but at the moment there is a deep and disturbing crisis with respect to its prisons. The prison system in California is completely broken. In 2011, the most conservative Supreme Court in history told the State of California that its prison system was so bad it violated the Eighth Amendment’s prohibition on “cruel and unusual punishment.” So you know things have to be pretty bad when this Supreme Court is finding constitutional violations. The federal courts have found that “an inmate in one of California’s prisons needlessly dies every six or seven days due to constitutional deficiencies.”

Now, prisoners are going on hunger strikes in response to the conditions in California’s prisons. My law firm is also representing a former California prisoner, who is HIV positive, and who alleges that while he was in San Quentin State Prison prison officers disclosed his HIV positive status to the prison, withheld his HIV medications (in one instance for five weeks), and failed to protect him from other inmates who targeted him for being HIV positive.

3) Guantanamo Bay. So much could be written about the horror that is Guantanamo Bay, the dark symbol it is and will become; its vileness and repugnancy, its acidic corrosion of America’s foundational laws and principles. A five month hunger strike recently ended, possibly because of some minor court victories, but possibly not.

Eighty-three (83) of the 166 inmates still held at Guantanamo have been cleared for release. One of these inmates includes Shaker Aamer, a Saudi Arabian citizen and British resident who was never charged with any crime and was cleared for release by President George W. Bush in 2007.

Yasiin Bey, formerly known as Mos Def, volunteered to undergo force feeding under a camera. It is clearly an act of torture, which the United Nations itself stated in May.

So again, here is the government, which is supposed to be upholding rights, defending justice, and preserving the Bill of Rights, engaging in torture every day and refusing to release people who have by the government’s own admission not committed any crime.

4) The Zimmerman trial. I don’t think there’s anyone who is pleased with the outcome of the Zimmerman Case, whatever they thought of the merits of other side.

We ought to be able to walk away from a trial feeling satisfied with both the process and the outcome. Today we have the opposite: everyone walks away feeling unsatisfied with both the process and the outcome. So today we’re living 180 degrees away from where we need to be with respect to criminal justice. There’s a crisis: the system needs a complete turnaround, complete reform, and that reform has to be a different vision with respect to criminal justice.

Fundamentally we have to go back to the basics, and I mean the basics in terms of what are our values, what is the foundation for criminal justice in this country? What are we going to criminalize?

Are we really going to criminalize whistleblowers, criminalize people who come to the People to tell them that the government is doing something wrong? The government exists to serve the people, not the other way around, or as someone said in Aramaic (translated into Greek) a couple thousand years ago, “The Sabbath was made for man, man was not made for the Sabbath.”

And with respect to California, the State is failing in its duties to protect citizens. Prisoners are citizens as well and if there’s this crisis in the prison system then there’s something deeply wrong going on a societal level. People are not being educated, they’re not finding jobs, if there’s recidivism then it means that the criminal justice system is failing in its duties to reform and rehabilitate, which should be its purpose.

And Guantanamo – Guantanamo is as dark as it gets for this country, to have this kind of black hole where people are being tortured — literally tortured, just like in the gulags or in Auschwitz — without oversight: this is a deep deep stain. This is the real crime. What’s going on there is truly criminal and so disrespectful to our Constitution, to our rights, to our proud tradition going back over 800 years that the sovereign cannot deny either justice or right, in the words of Magna Carta.

The Zimmerman outcome is a clear sign that we still have a lot of work to do in this country regarding issues of skin color. The “coloreds,” or whatever we are or remain, those of us with a bit more melanin, we remain invisible — as Ralph Ellison put it sixty years ago — invisible except when this stuff happens. There’s been a lot of progress since then, but there’s also no denying that sometimes a person sees a little melanin or a lot of melanin and they see terrorists or day laborers or criminals. There have been changes in the laws and those changes have been positive, but what we really need is deep-seated cultural change where people see beyond melanin to character, a dream someone dreamed but has yet to fully manifest.

There’s just got to be an honest look of that. There’s no need for judgment, just that simple look. Where are we today? Would there be torture in Guantanamo if it had been Norwegians flying those planes? Would Trayvon Martin have been killed if he’d been a little lighter? It’s not the answers that are important to these questions — it’s the dialogue. Why are we so scared of dialogue on these subjects?

What will happen to Julian Assange?

September 3rd, 2012 § 0 comments § permalink

What will happen to Julian Assange?

The founder of WikiLeaks, a non-profit that publishes information provided by international whistle-blowers, remains a de facto prisoner in the Ecuadoran embassy and a wanted man by the Swedish government related to sexual encounters taking place in 2010.

Assange challenged the Swedish-issued European Arrest Warrant while in London, but the Supreme Court of the United Kingdom dismissed all of his appeals on May 30, 2012.

Soon thereafter, Assange sought asylum with the government of Ecuador in their embassy in London. On August 16, 2012, the Ecuadoran government formally granted asylum to Assange.

However, the British government has not promised safe passage to Assange to Ecuador (there were even reports that the British threatened to storm the embassy).

Ecuadoran President Rafael Correa has indicated that Assange can remain indefinitely within the embassy, to avoid a British arrest should Assange exit the embassy to head to the airport, for example.

Even while Assange stays put in London, Wikileaks remains a busy organization. In February of 2012, the organization produced more than five million emails from the intelligence company Stratfor. And in July, Wikileaks produced more than two million emails from Syrian political figures.

Earlier this year, Assange also produced a web show called “The World Tomorrow.” Some of his guests have included Rafael Correa, Noam Chomsky, Tariq Ali and Hassan Nasrallah (the current leader of Hizbollah).

What will happen to Julian Assange? Based on his track record, it is likely he will emerge from this imbroglio in a stronger position than when he left it.

The court cases, his asylum, and stand-off at the embassy keep Assange and WikiLeaks in the news, animate his supporters, and characterize him as a David fighting several Goliaths.

He is almost certainly in contact with supporters all over the world (political and financial), and he now has time to plan his next move without worrying if he will be sent in hand-cuffs to a Swedish prison.

Assange has in many ways become more powerful than the governments seeking his criminal indictment. To date, he has defied the United States government by publishing more than 200,000 classified diplomatic cables; defied an arrest warrant issued by the Swedish government; and defied a court order issued by the highest court in the United Kingdom that he subject himself to extradition to Sweden.

And then, somehow, he was able to convince the President of Ecuador to allow him asylum.

Assange is a survivor, and he has clearly learned the art of knowing which governments and laws he can flaunt while avoiding serious backlash, or even assassination.

My guess is that he will end up, eventually, in Ecuador.

It’s time for a new way

June 17th, 2012 § 0 comments § permalink

It’s time for a new way. The old way is not working, and things are only getting worse. The old way is broken. The people need to fix things, or try something new, or both.

It’s time for universal, single-payer health care. Civilization has changed – countries are no longer kingdoms fighting for land, and they are no longer ruled by kings. Decent civilizations aspire to protect the well-being and health of their people to the best of their ability.

Every modern industrial economy has a universal health care system: everyone one but the United States. The result is a health-care system that is the most expensive in the world, yet is 50th in life expectancy. A single-payer system would save up to $570 billion in health care costs because it cuts out the administrative costs of an insurance company middle-man. What is so controversial about saving health care costs? What is so wrong about implementing a more effective way to provide health care services?

It’s time for new jobs. Young people, especially, are unemployed and drowning in debt. In the face of the greatest crisis since the 1930s, the government’s response has been weak and ineffective. There are no proposals for the creation of new industries, no proposals for sponsored work-programs to keep people employed, no proposals for grand infrastructure projects (the Hoover Dam was built during the Great Depression), no proposals for debt relief, and no proposals for reforming an economic system which has created massive “too-big-to-fail” companies and institutions that act with impunity. People live paycheck to paycheck, or drain their savings waiting for new opportunities – opportunities that never arrive because society has done nothing to permit their growth.

The economy will not magically rebound on its own. The economy was destroyed by banks and speculation. The only institution powerful enough to create an industry or a massive economic project is the government.

It’s time for a new way to elect leaders. The naked buying of political office through the private electioneering system becomes more obvious with each election cycle. Because “money is speech” and “corporations are people,” (Citizens United v. Federal Election Commission, 558 U.S. 50 (2010)), the individuals and companies with the most money get the most say in politics. Politicians, so dependent on campaign funding to remain in office, enact policies that protect the tiny, wealthy elite who fund their campaigns, all at the expense of the common good. The rest are completely shut out of government policy.

What good is a democracy that does not rule in the best interest of the people? What good is a government that does not adequately govern?

It’s time for a vision of a peaceful future. The current global economic framework is shaky at best, and falling apart at worst. Economies stagnate, or as in Europe, are approaching a crisis point; no one seems to know what to do. Environmental problems mount, the threat of climate change grows with each carbon molecule, political instability takes its toll in the Middle East and elsewhere.

Where are the leaders providing a vision of the future that includes healthy and sustainable economic development, technology in the service of the environment, and peace and commerce with all countries? Where are the leaders who will stand up to the fundamentalism, hatred, ignorance and greed within this country? The absence of a hopeful vision creates a vacuum that will be filled with the messages of bigots, tyrants and demagogues.

The people need a new way. The current way is a way that is not working. It must be fixed, or replaced, because in time it will completely fall apart.

Comar Law Film School Project

June 17th, 2012 § 0 comments § permalink

In conjunction with Randy Hall and the San Francisco School of Digital Filmmaking, Comar Law was the recipient of a 30 second advertisement designed to put Comar Law on the moving screen and help craft the message of the firm.

Comar Law‘s first foray into film – but definitely not the last.

On the quest for positive change

March 11th, 2012 § 0 comments § permalink

This website will be undergoing changes soon. I’ve had it up and running for about 14 months now, but am still experimenting with how to balance this site with my law practice.

After doing some thinking, it seems the most appropriate thing to do is to keep this site more active as a series of personal reflections about my journey as a lawyer committed to positive social change.

These are interesting times: a period of unprecedented material abundance, yet deep unhappiness. Technology has united the world, but capital and politics appear more eager than ever to keep the human race apart.

And smart, highly educated young adults find themselves without work, without purpose, and looking at a world that in many respects shouldn’t be so ugly.

I started Comar Law as a way of fighting back and championing what I see as a declining state of civilization. But I also started Comar Law as a way of providing meaning to my life.

As I get older, I realize that the quest for positive social change is also the quest for positive personal change. I want to live in a world where people take better care of each other and use their talents to inspire the best in human kind.

If this is the world I want, I realized that this is the journey I must walk as well.

Gandhi said this more eloquently: “Be the change you wish to see in the world.”

I believe fervently that while there is much out of place in this world, there is so much that is right — so many accomplishments that people have made in the name of social progress, even just in the last 100 years. Things like slavery, sexism and racism were tolerated for tens of thousands of years and are now considered rightfully repugnant. People died from diseases that are now easily prevented with a childhood vaccine.

In the face of so much progress, it would be a great shame for educated people to hold their hands up in despair at the current state of things. The battles that I think lie ahead — greater social justice, greater economic opportunities, technology in the service of the planet and not in the service of greed, and a more unified species that holds itself with dignity, compassion and civilization — are really the final stages of much greater struggles that have been already won. This is the last leg of a long marathon.

Can those who feel in their hearts — who know in their hearts — that a better world is possible give up now? Of course not.

I look forward to detailing my own journey on this blog. Happy Sunday.