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As I Please (George Orwell Birthday Edition)

George Orwell was born on this date in 1903 in the city of Motihari which was located in what was then British India (now India).  Aside from having written 1984 and Animal Farm, he also produced a great deal of journalism, some of which he fashioned into novels, like Homage to Catalonia.  Orwell also liked the outdoors and for a period of time grew and raised his own food on the desolate island of Jura in the Inner Hebrides.  When he had a brush with death nearly drowning in a whirlpool along with his young son, Richard, one of his first remarks upon returning to the safety of land concerned the remarkable features of a bird he had just seen.  The Tribune is one of the publications to which Orwell contributed articles when he was still working as a journalist.  After Orwell died on January 21, 1950, at the age of 46, the editors of the Tribune published in place of an obituary about his death what they considered to be their favorite piece by Orwell from among the many he wrote for the paper.  The piece was part of a long running column by Orwell entitled As I Please; this one happened to be the 68th installment and was dated January 3, 1947.  Here it is in full:

Nearly a quarter century ago I was traveling on a liner to Burma.  Though not a big ship, it was a comfortable and even a luxurious one, and when one was not asleep or playing deck games one usually seemed to be eating.  The meals were of that stupendous kind that steamship companies used to vie with one another in producing, and in between times there were snacks such as apples, ices, biscuits and cups of soup, lest anyone should find himself fainting from hunger.  Moreover, the bars opened at ten in the morning, and, since we were at sea, alcohol was relatively cheap.

The ships of this line were mostly manned by Indians, but apart from the officers and the stewards they carried four European quartermasters whose job was to take the wheel.  One of these quartermasters, though I suppose he was only aged forty or so, was one of those old sailors on whose back you almost expect to see barnacles growing.  He was a short, powerful, rather ape-like man, with enormous forearms covered by a mat of golden hair.   A blond moustache which might have belonged to Charlemagne completely hid his mouth.  I was only twenty years old and very conscious of my parasitic status as a mere passenger, and I looked up to the quartermasters, especially the fair-haired one, as godlike beings on a par with the officers.  It would not have occurred to me to speak to one of them without being spoken to first.

One day, for some reason, I came up from lunch early.  The deck was empty except for the fair-haired quartermaster, who was scurrying like a rat along the side of the deck-houses, with something partially concealed between his monstrous hands.  I had just time to see what it was before he shot past me and vanished into a doorway.  It was a pie dish containing a half-eaten baked custard pudding.

At one glance I took in the situation — indeed, the man’s air of guilt made it unmistakable.  The pudding was a left-over from one of the passengers’ tables.  It had been illicitly given to him by a steward, and he was carrying it off to the seamen’s quarters to devour it at leisure.  Across more than twenty years I can still faintly feel the shock of astonishment that I felt at that moment.  It took me some time to see the incident in all its bearings: but do I seem to exaggerate when I say that this sudden revelation of the gap between function and reward – the revelation that a highly-skilled craftsman, who might literally hold all our lives in his hands, was glad to steal scraps of food from our table — taught me more than I could have learned from a half dozen Socialist pamphlets?

A news item to the effect that Yugoslavia is now engaged on a purge of writers and artists left me to look once again at the reports of the recent literary purge in the U.S.S.R., when Zoschenko, Akhmatova and others were expelled from the Writers’ Union.

In England this kind of thing is not happening to us as yet, so that we can view it with a certain detachment, and curiously enough, as I look again at the accounts of what happened, I feel somewhat more sorry for the persecutors than for their victims.  Chief among the persecutors is Andrei Zhdanov, considered by some to be Stalin’s probable successor.  Zhdanov, though he has conducted literary purges before, is a full-time politician with — to judge from his speeches — about as much knowledge of literature as I have of aerodynamics.  He does not give the impression of being, according to his own lights, a wicked or dishonest man.  He is truly shocked by the defection of certain Soviet writers, which appears to him as an incomprehensible piece of treachery, like a military mutiny in the middle of a battle.  The purpose of literature is to glorify the Soviet Union; surely that must be obvious to everyone?  But instead of carrying out their pliant duty, these misguided writers keep straying away from the paths of propaganda, producing non-political works, and even, in the case of Zoschenko, allowing a satirical note to creep into their writings.  It is all very painful and bewildering.  It is as though you set a man to work in an excellent, up-to-date, air-conditioned factory, gave him high wages, short hours, good canteens and playing-grounds, a comfortable flat, a nursery-school for his children, all-round social insurance and music while you work — only to find the ungrateful fellow throwing spanners into the machinery on his very first day.

What makes the whole thing somewhat pathetic is the general admission — an honest admission, seeing that Soviet publicists are not in the habit of decrying their own country — that Russian literature as a whole is not what it ought to be.  Since the U.S.S.R. represents the highest existing form of civilization, it is obvious that it ought to lead the world in literature as in everything else.  “Surely,” says Zhdanov, “our new Socialist system, embodying all that is best in the history of human civilization and culture, is capable of creating the most advanced literate, which will leave far behind the best creations of olden times.”. Izvestia (as quoted by the New York paper, Politics) goes further: “Our culture stands on an immeasurably higher level than bourgeois culture … Is it not clear that our culture has the right not to act as pupil and imitator but , on the contrary, to teach others the general human morals?”. And yet somehow the expected thing never happens.  Directives are issued, resolutions are passed unanimously, recalcitrant writers are silenced: and yet for some reason a vigorous and original literature, unmistakably superior to that of capitalist countries, fails to emerge.

All this has happened before, and more than once.  Freedom of expression has had its ups and downs in the U.S.S.R. , but the general tendency has been towards higher censorship.  The thing that politicians are seemingly unable to understand is that you cannot produce vigorous literature by terrorizing everyone into conformity.  A writer’s inventive faculties will not work unless he is allowed to say approximately what he feels.  You can destroy spontaneity and produce a literature which is orthodox but feeble, or you can let people say what they choose and take the risk that some of them will utter heresies.  There is no way out of that dilemma so long as books have to be written by individuals.

That is why, in a way, I feel sorrier for the persecutors than for the victims.  It is probable that Zoschenko and the others at least have the satisfaction of understanding what is happening to them: the politicians who harry them are merely attempting the impossible.  For Zhdanov and his kind to say, “the Soviet Union can exist without literature,” would be reasonable.  But that is just what they can’t say.  They don’t’ know what literature is, but they know that it is important, that is has prestige value, and that it is necessary for propaganda purposes, and they would like to encourage it, if they only knew how.  So they continue with their purges and directives, like a fish bashing its nose against the wall of an aquarium again and again, too dim-witted to realize that glass and water are not the same thing.

From The Thoughts of Emperor Marcus Aurelius:

In the morning when thou risest unwillingly, let this thought be present — I am rising to the work of a human being.  Why then am I dissatisfied if I am going to do the things for which I exist and for which I was brought into the world?  Or have I been made for this, to lie in the bed-clothes and keep myself warm?  — But this is more pleasant — Dost thou exist then to take they pleasure, and not at all for action or exertion?  Dost thou not see the little plants, the little birds, the ants, the spiders, the bees working together to put in order their several parts of the universe? And art thou unwilling to do the work of a human being, and dost thou not make haste to do that which is according to nature?

It is a good idea to print this well-known exhortation in large letters and hang it on the wall opposite your bed.  And if that fails, as I am told it sometimes does, another good plan is to buy the loudest alarm clock you can get and place it in such a position that you have to get out of bed and go around several pieces of furniture in order to silence it.

End of a Chapter

I have written about the issue of Padilla retroactivity for some time and have in some respects made it the focus of this blog.  Since the Supreme Court answered the question in Chaidez v. United States — that Padilla does not apply retroactively — it is no surprise that I have had less to say, or at least, report on the matter.  Courts seem to have really given up on grappling with the issue in the wake of Chaidez even though the decision was a narrow one.

I should mention now that I have been engaged in my own efforts to convince a court to apply Padilla retroactively.  This effort began in earnest in 2011 and ended only recently, in the last month or so.  It was a pro bono effort on behalf of a federal habeas petitioner, which involved a number of very competent attorneys.  I will not bore you with details of the litigation, like when the court sua sponte rejected our appeal following the Chiadez decision, or how disappointed we all were when it came time to throw in the towel — a decision we resisted until the very end.  In today’s spectrum of “undesirables” it seems to me immigrants convicted of crimes fall somewhere between greedy bankers and unrepentant doping athletes.

This doesn’t mean Padilla retroactivity is dead in the water.  Quite the contrary.  As I have previously emphasized, the Court decided Chaidez on very narrow grounds and leaves room for an argument that Padilla should be applied retroactively to cases where an attorney has misadvised a client on immigration consequences, as opposed to ones where no advice was provided at all.  The Chaidez court never addressed the former because it was not asked to do so.  And Chaidez itself was a failure-to-advise case.  Those seeking postconviction relief, either on their own or with the help of an attorney, should make this argument and they should do it early and often.  Chaidez all but invites a future challenge to its scope and it would be irresponsible to turn that invitation away based on the flawed and lazy interpretations that courts have given Chaidez thus far.  It took a little less than three years from its decision in Padilla for the Court to decide Chaidez.  While it’s unlikely that the Court will revisit Chaidez in another three years — a relatively short time period to build the kind of groundswell that is required to successfully petition the Court — I think it likely that the Court will do so sooner or later.

The Imperial Supreme Court

The Supreme Court has officially entered its summer recess, leaving yet another controversial term in its wake.  States will now be able to gerrymander at will without first subjecting their plans to federal oversight.  Laws that are passed to discriminate against gays are prone to being struck down by a court as unconstitutional.  And affirmative action is still a laudable if not legal concept, although that too may change soon.

That the legal landscape has again shifted should come as no surprise.  Laws are prone to be amended or reversed from time to time, especially when they are subjected to the scrutiny of the country’s highest court.  That these changes might anger some and please others is nothing new either.  Controversy, after all, is something that often propels a case to the Supreme Court and  leads to its review by the justices, which is almost always at their discretion.  Not that debate should not be had on the cases that make it to the court.  But I think it hard pressed for anyone to argue that a robust and sustained debate on, say, whether a law is based on outdated data (the Shelby County, Voting Rights Act case) or whether the moral underpinnings of a law cause it to be discriminatory (the Windsor, DOMA case), can be had between the covers of  the legal briefs on which the justices rely to make their decisions.  This is especially true considering that any decision the Supreme Court makes to uphold but especially to strike down a law has significant consequences, not just on the people who are the subject of the law, but on those whose responsibility it is to make and enforce the law.  This, it seems, is a point Scalia touched on in his dissent in Windsor where the Court found DOMA unconstitutional.  But there too, Scalia was being disingenuous, as there is no love lost between Scalia and what he sees as the homosexual agenda: to Scalia, debate should be had in lieu of Supreme Court intervention, but only when it might prevent an otherwise discriminatory law from being swept into the morality dustbin.

The trend we see of the Supreme Court wading into almost every area of law is a troubling one.  It is a reflection of a government that is broken and dysfunctional, where no one accepts another’s position unless he is of the same party or political ideology.  And those on the losing end inevitably vow, with increasing success, to have the disfavored piece of legislation overturned.  As a result, we have a government that is increasingly governed by nine unelected officials, and, some may say, one such person in Justice Kennedy.  Say what you will about the character and ambitions of those who choose to run for public office or the lack of competition one often sees on an election ballot, when elected officials displease their constituents, the remedy is to vote them out.  Needless to say, Supreme Court justices are not subject to the same pressures; indeed, their reign at the Court may last decades and is subject to almost no oversight at all.  Not that we should get into the business of electing judges.  But to have every piece of major legislation, both old and new, consistently land in the Supreme Court with the prospect that it may be reworked, gutted, etc., on the ideological preference of a group of justices or just one justice is a prospect no one should savor.

Of course, if a law must be struck down, that is the job of the courts.  No one should be made to suffer under an unjust law.  If neither the legislature nor the executive are willing to act, then it is the province and, in some situations, the prerogative, of the court to take up the slack.  But the primary concern should not be “how do we kill this law”, but “how can we get the law that we desire”.  The former almost certainly leads to greater polarization and distrust of our government institutions, while the latter encourages and requires participation in the process that is self-government, which, in almost any scenario, provides greater legitimacy to the final outcome, even if it is unsatisfactory to some.

Another Cert. Worthy Candidate to Expand the Reach of Padilla? (UPDATED)

In its latest review of cert. candidates that have been relisted by the Supreme Court, SCOTUSblog noted some unusual activity with a case out of the Seventh Circuit that involves the application of Padilla v. Kentucky.  The case is Mario Reeves a.k.a. Rio v. United States, No. 12-8543 (7th Cir case no. 11-2328).   SCOTUSblog seemed to think  that the Court relisted the Reeves case in light of its recent decision in Chaidez.  Reeves is an example of efforts by individuals to expand the scope of Padilla to cover advice on consequences of a conviction other than deportation.  In Reeves, the defendant argued that a prior state court conviction was invalid under Padilla because his attorney in that case did not inform him that his conviction could later be used to enhance a sentence imposed against him in a future and entirely distinct criminal case.  It’s an interesting argument, but one that the Seventh Circuit did not buy.    Notably, the Seventh Circuit made no mention of whether Padilla could even be retroactively applied to assess the conduct of the defendant’s attorney, whose role in the case ended some time in 2004; its decision seemed to assume without deciding that it did.

In any event, the Supreme Court docket for the case indicates that the defendant is now being represented by attorneys from Northwestern University and Sidley Austin.  Perhaps this plus the relist is a sign of good things to come for Mr. Reeves.  If anyone has a copy of the cert. petition in Reeves, I would really like to read it.  In the meantime, the Seventh Circuit’s decision can be downloaded here.

UPDATE: The Supreme Court denied Mr. Reeves’ cert. petition on March 18, 2013.

Some Thoughts on the Chaidez Decision

The core of the majority’s decision in Chaidez rests on the notion that before Padilla no court would have granted postconviction relief to a foreign national defendant under Strickland based on an attorney’s failure to give deportation advice because deportation was considered a collateral, not a direct, consequence of a conviction.  It is this dispositive aspect of the collateral v. direct distinction and, to the majority, Padilla’s “rejection” of it, that makes Padilla a particularly novel decision and one ill-suited for retroactive application.  The problem, it seems to me, with the majority’s analysis is that it overstates the importance or effect of the collateral v. direct divide, and it is also a demonstration that judges who have little or no on-the-ground experience, as is the case with Kagan, make bad law.  (There is a reason Kagan was assigned to write the opinion which I will get to a bit later.)  To take just one example: if what the majority stated was true, and courts really made mince meat out of Padilla-like ineffective assistance claims pre-Padilla based on the collateral-direct divide, then few if any of the cases which presented these claims before Padilla should have made it past the pleading stage, let alone being decided on their merits in published decision after published decision.  I do not think that is how courts treated Padilla-like claims in the pre-Padilla era, however.  Instead, courts still decided Strickland claims pertaining to deportation advice on their merits even if they ended up denying them based on the collateral v. direct distinction.  In other words, there was no question that Strickland defined the standard of competent representation received by foreign nations in criminal cases  pre-Padilla, the debate rather was over how that standard should be defined in such cases.  To take yet another example: let’s say an individual is irked by his attorney’s performance in an immigration matter which ended up in his removal and in a misguided effort to prevent his removal brings a claim in federal district court alleging ineffective assistance under Strickland.  There would be no question as to the applicability of Strickland or the fate of his claim; it would fail and fail big because Strickland applies only to criminal, not civil, cases.   But Strickland squarely governs in  cases like Padilla and Chaidez because they are, at their collective core, criminal matters.  I think this is, in part, what led the Padilla court to describe as “ill-suited” to the Strickland analysis the dichotomy between collateral v. direct consequences of a conviction — a point that Sotomayor seized on in her dissent where she took the majority to task for its over-reliance on and over-emphasis of this distinction.

As to my hypothesis as to why Kagan ended up writing the Chaidez opinion,  I think that the debate between say, Roberts and Alito, on the one hand, and Breyer and Kennedy, on the other, centered not on whether Padilla could be applied retroactively — the majority’s opinion makes clear that there was never much doubt there — but on how Padilla and now Chaidez might be used to expand the scope of Strickland to encompass advice on other so-called collateral matters, an outcome which presumably Roberts and Alito, to say nothing of Scalia and Thomas, would have disfavored.  At the same time, the more liberal members of the bench, did not want Chaidez written in a way that would have narrowed or weakened the mandate in Padilla (I wonder if Stevens’ presence at the Court — he apparently still maintains an office there — and generally as an observer of the Court,  might have had some influence as well).  So the task of authorship was given to Kagan who was willing to say no to retroacivity but do so in a way that was respectful of the Padilla decision.

The Myth of the Recidivist-Slacker

I wrote this piece before the recent events in Newtown and Sandy Hook but never posted it because I could not figure out a way to end the piece in a manner that was not shallow, preachy or both.  But despite its title and subject articles, the piece still seems timely in light of the tragedy that took place in Newtown.  I will admit that I have no more of an idea as to what we can do to change the status quo after the Newtown incident as I did before it took place.  However, I do know that the status quo is unsustainable and at this point any action is better than no action at all.

A recent essay published in The Crime Report, an online news source of all things crime-related, discusses the difficulties faced by ex-offenders in their collective inability to obtain gainful employment following their release from prison.  The essay is entitled Hiring Ex-Offenders: Time for a Different Approach and is written by William D. Burrel, who, according to a profile accompanying the essay,  “is an independent corrections management consultant specializing in community corrections and evidence-based practices.”

Mr. Burrel believes that employment programs which have been set up to help ease the transition of ex-offenders back into the free world are broken — a conclusion that, I am sure, is shared by many.  According to Mr. Burrel:

The lack of success with employment programs suggests to me that perhaps we are missing something crucial.

What is the answer to the offender– employment–recidivism conundrum? What are the relationships and correlations that we need to understand to create the right results?

As Moses says, “(T)he relationship between employment, job placement or assistance and crime desistance is more complicated than it appears.”

While I don’t have all the answers, it seems to me that part of the solution is a better understanding of what drives recidivism.

In their work on the psychology of criminal conduct, Andrews and Bonta identified “criminogenic risk factors” or drivers of criminal behavior.[iii] These factors lead people to commit crimes.

At the top of the list of these factors are anti-social, pro-criminal attitudes, values and beliefs. This means that offenders have a way of thinking, a world view and set of values that are sympathetic to and supportive of crime. The way they think about life, relationships, desires and decisions takes a different course than law-abiding citizens.

This mindset is generally not supportive of legitimate employment and the behaviors required to sustain it over the long term.

Contrast this with what George Jackson, the convict turned prison and political activist,  had written  in his now famous letters from prison — this one to his lawyer, Fay Stender:

I understand your attempt to isolate the set of localized circumstances that give to this particular prison’s problems of race is based on a desire to aid us right now, in the present crisis.  There are some changes that could be made right now that would alleviate some of the pressures inside this and other prisons.  But to get at the causes, you know, one would be forced to deal with questions at the very centre of Amerikan political and economic life, at the core of the Amerikan historical experience.  This prison didn’t come to exist where it does just by happenstance.  Those who inhabit it and feed off its existence are historical products.  The great majority of Soledad pigs [Jackson refers to prison officials and law enforcement generally as “pigs” – editor’s note] are southern migrants who couldn’t sell cars or insurance, and who couldn’t tolerate the discipline of the army.  And of course prisons attract sadists.  After one concedes that racism is stamped unalterably into the present nature of Amerikan sociopolitical and economic life in general (the definition of fascism is: a police state wherein the political ascendency is tied into and protects the interests of the upper class — characterized by militarism, racism, and imperialism), and concedes further that criminals and crime arise from material, economic, sociopolitical causes, we can then burn all of the criminology and penology libraries and direct our attention where it will do some good.

What Mr. Burrel, a nationally recognized expert in corrections, attributes to psychology, Jackson attributes to more systemic issues of economics, politics and culture.    The divergence in views couldn’t be greater.  But who is right?  I would suggest that, to some extent, they both are.

The individual does not, as Mr. Burrel would have us believe, exist in a vacuum.  Thus, when Mr. Burrel argues that psychology or “criminogenic risk factors” are the driving forces behind one’s desire or predisposition to commit criminal acts, he ignores that these risk factors are invariably the product of the environment in which one resides.  To suggest otherwise would be an exercise in eugenics.

By the same token, the individual is not a slave to his or her environment, at least in the psychological sense.  And in some cases, however rare they may be, individuals can prevail against the so-called criminal mentality even if their roots  can be found in one’s environment, or what Jackson described as society’s “material, economic and sociopolitical” problems.

None of this is terribly reassuring, of course.  At best, it results in a society of cynicism and inequality.  At worst, it leads to scenarios of violence and destruction, the worst of which we have seen unfold in places like Columbine, Virginia Tech, and more recently in Aurora and Wisconsin.

Some Late-Term Padilla Retroactivity News from SCOTUS

According to the SCOTUS blog, the Supreme Court has, at the suggestion of the Solicitor General’s office, decided to hold a case pending the outcome of Chaidez.  That case is Doan v. United States and it involves the issue of Padilla retroactivity.  Doan comes from the Eastern District of Virginia and the Fourth Circuit Court of Appeals.  Doan’s claim that Padilla applied retroactively was rejected by the lower court and Dona’s appeal from that ruling was later dismissed by the Court of Appeals because it found that Doan did not satisfy the standards for issuance of a Certificate of Appealability.  

The Supreme Court docket information for Doan is available here.  The trial court opinion which contains an analysis of Padilla retroactivity can be accessed on Google Scholar by searching for the name Thai Hong Doan.  I will try to get my hands on the brief filed by the Solicitor General’s office and if successful will post it here.