On Pardons and Admissions of Guilt

I’ve almost written this post several times, but I’m only just getting around to it. I’ve gotten plenty of opportunities, at least.

Over the years, every time Trump has pardoned one of his cronies – as he recently did with Michael Flynn – one of the reactions (mostly on the left) has been that by accepting the pardon the recipient admits his guilt to whatever offense he is being pardoned for. I think this rests on a misreading of the relevant Supreme Court case. More than that, any quick thought about how pardons normally work show that one doesn’t really have anything to do with admissions of guilt at all.

The Supreme Court case at issue is Burdick v. United States, 236 U.S. 79 (1915). And to be fair, in Burdick the Court did say this, in distinguishing between pardons and legislative immunity:

This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.

Case closed? No quite, for two reasons. First, there is absolutely no citation to any other case or source to support the idea that accepting a pardon means confessing guilt. Second, no court, even the Supreme Court, proclaims on law in a vacuum. So what was it that was the actual issue in that case?

Burdick was the editor of a New York City newspaper that had published leaks from inside the Treasury Department. The local US Attorney convened a grand jury to investigate and called Burdick, hoping he would name his sources. Instead, Burdick invoked the Fifth Amendment and his right to remain silent. To get him to talk, the US Attorney went to President Woodrow Wilson and obtained a pardon, which would extinguish the ability of Burdick to plead the Fifth (which, coincidentally, is where Flynn is now). Burdick refused to accept the pardon, continued to refuse to testify, and was eventually convicted of contempt for doing so.

When the case reached the Supreme Court the issue was, in the Court’s words, a “narrow question, is the acceptance of a pardon necessary?” Ultimately, the Court held that it was and that the person to whom the President wants to give a pardon doesn’t have to accept it (this is one hook upon which hangs the theory that Trump cannot pardon himself). It was in discussing why someone might not accept a pardon that the Court noted that it can be perceived as an admission of guilt. Thus, what a pardon means to the person accepting it wasn’t the issue before the Court – it was whether the person could reject the pardon in the first place. To my reading, that doesn’t to a clear legal basis for saying that the acceptance of a pardon is an admission of guilt.

But beyond what Burdick actually says (and about what), the idea that parsons require admissions of guilt just doesn’t make sense in a lot of cases and would create some real perversity in other cases.

For one thing, posthumous pardons exist, though they’re rare. In 1999, Bill Clinton entered the first federal one for Henry Flipper, the first African-American to graduate from West Point. It came 118 years after Flipper’s court martial and almost 60 years after he died. Trump did something similar with heavyweight champion Jack Johnson, granting a pardon in 2018 for a bogus Mann Act conviction that occurred in 1913 – Johnson died in 1946. There are countless other examples of posthumous pardons at the state level. Needless to say, the dead cannot admit to anything (they can’t accept anything, raising questions of whether these pardons actually mean anything) or confess to a crime in order to receive pardons. Whether posthumous pardons make any kind of sense, they are a thing, and they argue against the act of pardoning involving any kind of admission of guilt.

For another thing, some pardons are issued in anticipation of prosecution, not after a conviction. The most notable example is Gerald Ford’s pardon of Richard Nixon after his resignation, not for specific crimes for which he’s already been convicted, but for any crime for which he could have been charged. Notably, while Ford apparently carried hunk of Burdick around with him as proof that an acceptance of a pardon was a confession of guilt, Nixon’s own statement accepting the pardon didn’t confess to any particular crime (although he apologized for the “anguish” his actions had caused – the prototypical “I’m sorry because you’re sad” nonpology). What would the recipient of such a pardon confess to without having been convicted of something?

A related concern is mass pardons, which cover entire classes of people and aren’t concerned with the particular facts of any one case. Such pardons include Andrew Johnson’s mass pardon of ex Confederates after the Civil War (notably, the oath required to get one was all about allegiance going forward, not confessing to past crimes) and Jimmy Carter’s pardon of Vietnam War draft evaders.

Finally, requiring those who are offered pardons to admit guilt in order to receive them would lead to perverse results. Convicted people who are actually innocent may be loath admit to something they don’t believe – that they’re guilty of a crime – in order to get a pardon. This is the same dynamic that sometimes plays out with parole boards – they want some sign that the inmate at issue is remorseful and reformed, but if you’re wrongfully convicted how can you provide that? Furthermore, the use of the pardon power to spare the innocent is, arguably, it’s primary function. Thus, when the Governor of Illinois issue a pardon to Oscar Neebe and his codefendants (convicted in 1886 for taking part in the Haymarket bombing) in 1893, because they were innocent. In 2011, the Governor of Colorado posthumously pardoned a man who had been executed in 1939 because his conviction was based on “a false and coerced confession.” Other examples of similar pardons abound. If, as we’re often told, pardons are supposed to be a kind of safety valve in the criminal justice system, to allow executives to give relief to those who did not commit the crimes of which they were convicted, reading the acceptance of a pardon to mean a confession of guilt makes no sense. Pardons, as well as commutations of sentences, are acts of executive grace, the last vestige of the absolute power once granted to kings. They can be granted for good reasons, bad reasons, or no reason at all. That’s the point – this is the one area where the executive gets to make that decision themselves. Maybe that’s an idea whose time has passed, but it would require Constitutional amendments to change. The very nature of pardons is that they don’t come with strings attached (unless they specifically do), certainly not the requirement of admitting guilt from the one being granted the relief.

Can’t Talk – Writing

Hey, gang. Guess what time of year it is?

I mean, yeah, there’s an election that’s probably not going to be over with for a while, but beyond that, it’s November which means . . .

It’s National Novel Writing Month!

That’s when folks, including yours truly, take the month of November to focus on writing the first draft of a novel – well, at least 50,000 words of it. I’ve done this several times and it’s a great way to jump start a new project. So, this year, I’m going to be writing the third book in the Unari Empire trilogy, Heroes of the Empire (yes, yes, I know, Widows of the Empire isn’t out yet – it’s with beta readers, so it is coming), thus bringing the whole thing to a thrilling (?) conclusion.

Which means – it’s blog silence for me for the rest of the month (at the least). Stay safe and I’ll see you on the other side.

“Shift Change” – A Short Story

“Shift Change” – A Short Story

Finally! Something about 2020 that feels normal. As he’s done in years past, author Eric Douglas has invited other writers to do some short fiction for Halloween. It’s always been fun, so I was happy to chip in another entry. You can read my prior Halloween short story here, as well as my two prior 100-word entries here and here. And, as always, head over to Eric’s place to check out stories from all the other folks.

Now, without ado – “Shift Change”


Vuzzaz sat at the end of the hall of the Amalgamated Union of Transdimensional Frighteners, Demons, and Purveyors of Dread building and watched the shift change turnover. He pretended to be engrossed in paperwork, but really he was just trying to get comfortable in his chair, watching beings. It was one of those hard plastic things designed to make you uncomfortable, but at least this one had an opening in the back so he didn’t have to sit on his tail. It swished back and forth slowly behind him.

He’d chosen this location carefully, after years of trial and error. It was far enough away that he couldn’t really overhear what anyone else was saying, but not so far away as to draw notice. Kothol demons aren’t known for keen hearing, anyway, but not every monster knew that. From here he could blend in and watch the low-slung shoulders, the puffy eyes, and other indicia of feelings even if he couldn’t hear the words.

The beings from the A shift shuffled out of the shift room, heads and tentacles down, with an air of defeat. One big red demon with four arms and a pair of swooping black horns was actually crying. Behind him, Munol, Vuzzaz’s counterpart for the A shift, put a tentacle on his shoulder in an effort at consolation. It clearly wasn’t working, leading Munol to turn and lock eye stalks with Vuzzaz.

As the A shift slid down the corridor and the B shift started to trickle in, Munol squeaked down toward Vuzzaz, his pungent slime trail dripping through the grated floor.

“Is it really that bad?” Vuzzaz asked.

 Munol did the closest thing to a shrug a being with no shoulders and six flopping tentacles could. “I’ve never seen it like this. You have bad days, we all have bad days, but you don’t lose the love for the work.”

Vuzzaz looked through Munol as the rest of his shift shuffled in. “It can’t go on like this.”

“What are you going to do?” Munol’s dozen eyes all blinked at once.

Vuzzaz stood. “Go find every old timer you can find. I don’t care what they’re doing or how far up the chain they are. Tell them to come to the shift room as soon as they can.” As Munol began to ooze away, Vuzzaz grabbed a tentacle. “I mean every one.”

As Munol slithered down the hallway behind him, Vuzzaz watched as the stragglers of his shift filed into the room. Last, as always, was Bagrozoth, who looked like a pale three-foot-tall sprite or fairy, until her performance began and she tripled in size and turned coal black.

“Sorry, boss,” she said, voice squeaking.

“Get in there,” Vuzzaz said, following her in and closing the door.

The shift room was like a classroom that had seen better days. There was a lectern at the front from which Vuzzaz or his colleagues could speak to their charges. The members of the shift itself – normally an even dozen but Zongriruk was out sick today – sat in folding chairs barely big enough to hold most of them. There was room for, maybe, three or four beings to come and stand along the wall near the door.

The din of conversation among the shift quieted when Vuzzaz stepped behind the lectern. He took a deep breath, even puffing up his auxiliary swim bladder for effect. The room was very quiet for a long while.

“I understand,” Vuzzaz finally said, “that things are hard out there. But that is no excuse for not trying to do the best job we can. The Earth relies on us.”

“Then maybe the humans should cut us some slack.” It was Var’ath, a Kosmar demon who haunted dreams. “It’s a nightmare down there, even before I clock in.”

A rumble of agreement from their coworkers, including the low rumble that meant the mountain of rock named Billy, showed that they shared their opinion.

Vuzzaz held up his hands to quiet the crowd. “Tough times come and go when you’re an eternal purveyor of dread. Things will get better.”

“When?” Mizrolas stood up. She was a slender reed of a demon, pulsing blue green with three piercing yellow eyes and a mouthful of sharp, dagger-like teeth. “I was sneaking up on a girl, a teenager, someone I should scare the pants right off of. What’s she reading about on her phone? This pandemic that’s closing cities down, killing hundreds of thousands, impoverishing millions. How am I supposed to compete with that?”

Numerous others chimed in with nods of heads, stalks, or whatever appendage they had handy.

“I was nestled in the corner of a TV room,” said Jegexath, who for the moment had taken the form of a humanoid made entirely of chimney smoke, “just waiting for the right moment to seep out over the floor and imbue the family with dread. Do you know what they start talking about on TV?”

“Tell us!” cried out Gorkazod, like they were in their unholy church.

“Murder hornets!” Jegexath said.

Another dissonant din erupted from the room as some of the others called out the parade of horribles they had heard about, too.

“Wild fires!,” someone called out. “Australia was literally on fire!”

Another added, “so many hurricanes they’re running out of names!”

“Shortages of toilet paper! And yeast!”

They were so riled up that they didn’t even notice when Munol opened the door and walked in, along with one other old timer. Vuzzaz had hoped for more, but he’d have to work with what he had.

Vuzzaz put up his hands again, but with limited effect. “Now, now, let’s settle down.” That didn’t have much effect either. He didn’t want to go harder, but they were short on time and he had a point to make.

“KNOCK IT OFF!” Vuzzaz roared, eyes turning a shade of flaming orange while his knuckles went black as he clutched the lectern.

That quieted the crowd.

Vuzzaz took a few deep breaths to regain his composure. “Thank you. As I was saying, I know this year has been harder than most, but it’s nothing we haven’t dealt with before.” He looked to Gorkazod, a Muisto with a knack for dates and names. “When did I start trying to scare people?”

Its eyes rolled into its head for a second, then it answered, “1918.”

“That’s right. 1918.” Vuzzaz nodded, waiting to see if the date sank in. These young demons were so ignorant of history. “I first went to work while the Earth was convulsed in a terrible war, upon which a pandemic more deadly than the current one developed. Do you think I complained? No. I put my head down and did the job, because it needed to be done.”

“Due respect,” Gorkazod said, sheepishly raising a tentacle, “people were different then. They didn’t have all the horrors of the world beamed into their homes 24 hours a day.”

Silent nods greeted this, but at least they all kept quiet this time.

Vuzzaz hung his head, then turned to Munol. “Would you like to tell them when you first started?”

“1349,” it said, surveying the room. “That mean anything to anyone here?”

A silence fell over the room, punctuated only by the rolling gurgle that Xanuth did when he got nervous and couldn’t control his fluid sacs.

“The Black Death,” Vuzzaz said. “Killed half of Europe. People thought they were living in the last days, but did that keep Munol from doing his job?”

“You know it didn’t,” Munol said, folding his tentacles defiantly.

Sogthoz was just starting to explain his first years working during the era of the Mongol hordes when the door opened and Rilgaxoth walked into the room. Everyone froze – Sogthoz even stopped at mid sentence – when the boss entered. It took a moment for the shift to remember protocol before they leapt to their appropriate appendages.

Vuzzaz did his best to conceal a grin and made a mental note to buy Munol a couple of buckets of fish guts later.

“Good morning, First Supervisor,” Vuzzaz said, bowing slightly.

“Deputy,” Rilgaxoth said, with barely a notice. “Carry on.”

It took a moment for Sogthoz to get back up to speed, and Vuzzaz felt as though his hearts really weren’t in it at this point. Still, he at least made clear to Rilgaxoth why he’d been summoned here.

Before Vuzzaz had to think of where to go next, Rilgaxoth stepped next to him at the lectern, sulfur clouds billowing in his wake. “May I?”

Vuzzaz stepped to the side without a word.

“August 26, 1883,” Rilgaxoth said, barking like he was upset he had to be here. “A volcano called Krakatoa erupted, blowing most of an island off Southern Asia to hell. Killed tens of thousands. Was felt thousands of miles away. Affected the climate of the planet Earth for weeks.”

Rilgaxoth snapped his fingers and an image appeared in the aether beside him – a strange, malformed man with his hands to his face, mouth agape, under a blood red sky. “That’s what Norway – fucking Norway – looked like because of this. People thought the world was coming to an end.” He paused to let that sink in.

“And I started my work here on August 28, 1883. The Earth looked like it was on fire and I got out there and did my job. Now,” he barked again, before saying almost in a whisper, “get out there and do yours.”

Vuzzaz wasn’t sure if he actually shot out the door or just vanished, but all that was left at the lectern was a slowly dissipating cloud of sulfur. Vuzzaz stepped up and waved some of the fumes away. “Any questions?”

Xanuth, who had to double over just to fit through the door, sheepishly raised his hand.

“Yes?” Vuzzaz asked, glancing at the clock on the wall. He needed to wrap this up.

“If the humans are already so scared,” Xanuth said, “if their world is so terrifying, then why do we have to frighten them even more?”

Only then did Vuzzaz grasp how bad things were. His charges weren’t lazy or trying to get out of doing a hard job. They’d forgotten what their job was.

“What we do is so important,” he said, “regardless of what reality the humans are dealing with. The truth is, if the humans ever really sat and considered their situation, they’d never be able to leave the homes. They lead brief lives of survival and desperation on a rock hurtling through space with no purpose, no plan.”

He took a deep breath. “Our . . . competitors,” he said with a shudder, “think the way to help them deal with their situation is to give them hope, false hope, that it all really means something, that there is some ultimate reward. We know better. We know that humans can do it, they can face their fears and improve their lot. That’s why we frighten. That’s why we scare. We give their minds a place to confront darkness and vanquish evil so that in their waking lives they can get on with the business of surviving. After all, Xanuth, what’s another jammed commute or a terrorist attack or even a global pandemic once they’ve dealt with you?”

“Fair point,” Xanuth said, shaking what passed for his head.

“You’re damned right!” Vuzzaz was starting to warm up now. “Same for you and you and you,” he went around the room looking every last one of them in the eye. “You all make that world a better place, by giving them a chance to confront some fears they can conquer!”

“Yeah!” A ragged chorus responded.

“So what are we going to do?” Vuzzaz asked stepping from behind the lectern.

“Scare people!”

“And are we going to do it the best we damned well can?”

“Yes!”

He yanked open the door. “Then let’s get going!”

The shift jumped to their feet and tentacles and stumps and started pouring through the door.

Vuzzaz waited until they were all out and striding down the hall with purpose.

“Hey, all of you!”

They turned at his call.

“Let’s be scary out there, all right?”

They nodded, whooped and gave each other high regards in various numerals. Before Vuzzaz knew it, they were out the door.

Munol was standing just behind him. “Good speech. I’ll have to remember that next time.”

“Won’t work next time,” Vuzzaz said. “Sad fact is, if that world down there doesn’t start to improve, our jobs are going to suck for the foreseeable future. I think I owe you some fish heads.” Munol licked his lips. All five of them.


HAPPY HALLOWEEN!

Weekly Read: The Feather Thief: Beauty, Obsession, and the Natural History Heist of the Century

One of my favorite semi-recent films is David Fincher’s Zodiac, about the lengthy hunt for the Zodiac Killer (made before everybody agreed it’s Ted Cruz). While that’s an apt description of the film, it’s also pretty shallow. What the movie is really about is obsession, about the need to find answers, and what it does to people who dedicate their lives to trying to find them, yet don’t.

I thought a lot about Zodiac while reading The Feather Thief. Not because the crimes involved are in any way similar or because The Feather Thief is a gripping whodunnit. In fact, there’s no doubt whodunnit – on June 24, 2009, an American flautist-in-training (!) named Edwin Rist, studying at the Royal Conservatory in London, travelled to the nearby village of Tring and stole nearly 300 specimens of rare tropical birds from a branch of the Natural History Museum. This is hardly a spoiler, as it’s right there in the prologue. If the story is that simple, why is The Feather Thief worth reading? For several reasons.

First, Kirk Wallace Johnson does a really good job of laying out why anyone would bother to steal a bunch of birds. This starts with a history of these birds themselves, many of which were captured and cataloged by Alfred Russel Wallace, Darwin’s rival in developing the theory of natural selection. Then there’s the late-Victorian fashion fad of using rare birds (not just their feathers, either!) as status symbols and the backlash that produced one of the first animal conservation movements. Laws and treaties followed and the birds were generally relegated to becoming museum specimens at places like the Natural History Museum. They were in a small-town outpost in 2009 because they had been relocated there for safekeeping during World War II.

That these kinds of birds were basically illegal to possess, or at the very least sell on the open market, led to them becoming particularly valuable to a particular community – that of expert fly tiers. These are not folks that tie flies in order to use them fishing, but rather out of artistic drive and the desire for historical accuracy. Rist was not only a member of this community, but a leading light of it, even as a teenager. He was, broadly speaking, in the right place at the right time to know the value of these birds and have access to them.

The second thing that makes The Feather Thief compelling is Johnson’s role in this tale. He was once responsible for trying to rebuild parts of Iraq after the war, then transitioned into helping Iraqis who had worked with the United States seek asylum in the US.  Although he wants to know why Rist did it (which is pretty obvious), he’s more interested in trying to right the wrong and locate the birds that hadn’t been recovered via the usual process of Rist’s criminal prosecution (he got no time, thanks to a shaky autism diagnosis by – no shit – Sasha Baron-Cohen’s cousin). This began with a stray comment from a buddy while fly fishing and, well, the rest is history.

This is where the Zodiac connection really comes in. Almost everyone in The Feather Thief is driven by an obsession that border on all-consuming. Wallace spent years in the Asian jungles in pursuit of specimens (while Darwin jumped in front of him with the whole evolution thing). Rist took to fly tying the way an addict-in-waiting takes to heroin. The ecosystem in which he swam online was obsessed with these birds as a means to creating the perfect fly. And, finally, Johnson himself nearly let his life get away from him as he tried to track down all of Rist’s birds.

None of these obsessions really end well, which returns us to Zodiac. There is no happy ending here, except maybe for Rist – yes, he’s a convicted felon, but he got his degree from the Conservatory and is making a living as a professional flautist. Johnson doesn’t find a trove of stolen birds. He can’t make the museum, and science itself, whole. Instead, he has to walk away before it consumes him, unsatisfied that he wasn’t able to make a difference.

The Feather Thief isn’t the knottiest whodunnit. The bad buy here isn’t really that inscrutable (whatever he convinced a court about his motivations). It’s more about the impact of a crime and the need to try and set it right. Along with the realization that, a lot of the time, that’s a hopeless crusade.

On Changing the World

There are generally two kinds of speculative fiction in terms of where those stories take place. One kind takes place in a world that is wholly divorced from our own. In fantasy that means the typical kind of second world story (like, say, The Water Road), but it applies to a lot of science fiction, too. Even if a sci-fi story is told in our reality, if it does so hundreds of years in the future it’s hardly “our world” it’s taking place in.

The second type, of course, takes place in what is basically our current world and universe – at the very least, it looks like what we think our world looks like (before The Year of the Plague, at any rate). Think urban fantasy or any of the numerous examples of near-future sci-fi that dot our pop culture landscape. There’s a particular issue with this, however, something that pops up more often in fantasy and something I first thought about because of a bunch of law professors.

The Volokh Conspiracy is a blog collective of most libertarian law profs and scholars. A few of them are also sci-fi/fantasy geeks, and so talk about that occasionally in and among lengthy posts on the Fourth Amendment and what have you. Several years ago, one blogger talked about having read Lev Grossman’s The Magicians trilogy.

For those not familiar with the books (or the excellent SyFy series that was based on them), the elevator pitch is “Harry Potter, but at college.” With that in mind, the blogger highlights an important difference:

Like the Harry Potter series, Grossman’s world features a hidden society of magicians who wield enormous power yet are unknown to normal humans, whose history they have little effect on. In the Potter series, however, there is a very powerful wizard government that prevents wizards from revealing their powers to Muggles and trying to dominate the world. The magical authorities in Grossman’s world are a lot weaker. It therefore strains credulity to believe that powerful sorcerers have been around for centuries, yet have never revealed themselves to normal humans, seized political power, or had any impact on history.

In other words, the world of The Magicians is different from ours not just in the general sense that “magic exists,” but that people have been trained to use it for generations and are living among us and . . . so what? What major historical catastrophe was averted? What major political movement played out a different way? The answer is nothing, and it’s a bit disappointing.

As I said, the issue has stuck with me. When I read Jonathan Strange and Mister Norrell I really loved the way that magic worked in that book – it was about knowledge, it was about books, not bloodlines and destinies and all that. The relationship between Strange and Norrell reminded me of the apprentice system that trained new lawyers before law schools rose to prominence in the 20th Century. My mind whirred and I came up with an idea for a world, like ours, where magicians organized into firms and did contract work for clients, just like lawyers do, complete with oversight by the state (my main character was going to be the equivalent of a State Bar investigator). “Okay, cool,” I thought, “but how is this world different from ours? After all, if magicians have been operating like this for decades, things should be different, yes?” I’ve foundered on the shoals of that question for years.

This issue raised its head again recently while I was reading N.K. Jemisin’s new novel, The City We Became.

If you’ve read her short story collection you’ll recognize the basic idea from the story “The City Born Great,” which effectively serves as the prologue for this book. Essentially, for reasons that aren’t really all that clear, at some point certain cities are “born” into actual, living entities. Some of these births go well – London, Hong Kong, and Sao Paolo are all living breathing cities at this point – while others don’t make it, or don’t make it for very long – think Atlantis and Pompeii, and New Orleans is having troubles, too. In the book it’s New York City’s turn and its difficult birth in the prologue leads to the avatars of the city (one per borough and an additional one overall) fighting to keep it living.

The book overall is pretty good. Jemisin can lay words on the page like just about nobody else going right now and the individual scenes and chapters are great as set pieces. The broader plot doesn’t quite work, however, and the book winds up feeling like less than the sum of its parts (props here to the audiobook production which, aside from one minor quibble – longer pauses between scenes please! –is brilliant both in production and performance). One reason that’s true is that we’re not given any idea why any of this matters. I mean, there’s a villain to vanquish (in the next book, apparently – grumble, grumble) and a city to save, but as to what makes London and Hong Kong and Sao Paolo different from what New York was prior to its birth we never learn.

On the one hand, this doesn’t necessarily mean the main story suffers. After all, it’s likely that The City We Became didn’t address this issue because it wasn’t really applicable to the story Jemisin set out to tell. Still, one of the great pleasures of speculative fiction is digging into a fully developed world that’s not ours and glossing over such things can leave the experience a little hollow. In other words, if you’re writing modern-world fantasy, or near future sci-fi, it’s worth thinking about what’s going on in the world beyond the discrete story you’re telling. Maybe it’s not that important, but it introduces some interesting possibilities for how to deepen the world you’re building and provide some extra details for readers who are interested in sinking their mental teeth into that kind of thing.

Thoughts On Buttered Cats

One of my favorite bands is Sanguine Hum, which marries intricate song writing and arrangements with an absurdist streak derived from the original Canterbury scene (not for nothing was an earlier version of the band called Antique Seeking Nuns). A few years ago they released a pair of concept albums – Now We Have Light and Now We Have Power – inspired by what’s called the “buttered cat paradox.” Did I mention the absurdist streak?

The buttered cat paradox is best explained in this short video, where butter is substituted with jam, but the principle is the same:

The further step upon which the Sanguine Hum albums are based is the idea that if the cat will hover off the ground, rotating, that the rotational force could be capture as a form of generating power. As one song from the first album goes:

The simplest way to describe
What is lighting up the night’s sky
Is rotatory fur!
It spins through the air.
We buttered their backs
Now we have light!
Now we have power!

This is, of course, basically a joke (remember the absurdum!), but the whole idea never sat right with me. If the cat wants to land on its feet and it’s falling feet first, why on Earth would it suddenly stop and start spinning? Sadly, my education left me without a good means of figuring this out. The closest I got to science in college was a survey-level Biology class, with nary a Physics class in sight. If you need someone to explain the histiocity of Holocaust denial or expound on legal philosophy, I’m your man. How things move in the universe, not so much.

I did some poking around and someone confirmed that I was right to think this doesn’t make any sense! The long and short of it involves the much larger mass of the cat as compared to the buttered/jammed toast:

So there it is – a completely hypothetical, terminally absurd thought experiment is debunked. I do take some satisfaction in this, even as I try to always keep in mind the MST3K motto to “repeat to yourself it’s just a[n album], you should really just relax.”

Let’s do just that, then, shall we?

Now We Have Light by Sanguine Hum

Now We Have Power by Sanguine Hum

The Mouse That Didn’t Roar

A lot has been written in the past few days (and will be written in the foreseeable future) about the legacy of the late Ruth Bader Ginsburg, both as an advocate before the Supreme Court and as a long-serving Justice. I wanted to highlight something that might get overlooked in all that (although at least one other commentator mentioned it), an instance where she made a huge impact on an important part of federal law without any explanation of why she made the decision she did.

Sentencing in federal criminal cases changed dramatically in the 1980s. Up until then, judges had great leeway to impose a sentence within a broad statutory range, with release on parole at the back end further mitigating potentially harsh sentences. Confronted with great disparities in sentencing, a bipartisan law, the Sentencing Reform Act (passed in 1984) gave birth the US Sentencing Guidelines (which went into effect in 1987).

The Guidelines are a mechanistic system that converts not just the defendant’s offense of conviction but related conduct into an “offense level” that goes from 0 to 43. Many of the facts related to that calculation comes from judges, not juries, and can even include conduct for which the defendant was acquitted at trial. The Guidelines do a similar thing with a defendant’s criminal history, placing them in a Criminal History Category from I to VI. Where those two values meet is the Guideline range, where the sentence is supposed to be imposed.

Starting in 1987 judges, for the most part, were required to impose sentences within that range (exceptions were largely controlled by the Guidelines, too).

From the get go, defense attorneys argued that the Guidelines (and various state equivalents) violated the Sixth Amendment because they increased punishment for a defendant based on facts beyond those found by a jury (or admitted during a guilty plea). Judges finding facts, the argument went, shouldn’t be the basis for ratcheting up punishment. Courts weren’t interested, however, and the Guidelines helped to drive the country’s overincarceration problem for the next two decades.

Things started to change in 2000, when the Supreme Court held that a New Jersey statute that allowed a judge to increase the statutory punishment for a defendant based on a judicially-found fact violated the Sixth Amendment. Ginsburg was in the majority in that case, but the cause of the revitalized Sixth Amendment was really championed by her opera buddy, Justice Scalia. With that case in hand, defense attorneys once again began to argue that the Guidelines were unconstitutional. Now the issue was whether an increase in those Guideline ranges were an increase in the statutory maximum for a particular offense.

Nothing came of those arguments until 2004, when the Supreme Court decided Blakely v. Washington. Blakely involved a sentencing guideline scheme in Washington state that was very similar to the federal Guidelines. In a 5-4 decision, the Court held that those guidelines violated the Sixth Amendment. Notably, the Court didn’t prescribe any kind of remedy, instead remanding the case and letting Washington deal with it. Ginsburg was, again, in the majority.

After Blakely it was only a matter of time before the Court had to consider what this all meant for the federal Guidelines. In 2005 the Court finally dealt with the matter in United States v. Booker. The facts of the case lay out the starkness of the issue – Booker was convicted of a drug offense that carried a statutory range of 10 years to life in prison. His Guideline range, on the other hand, bulked up by judicially found facts about the amount of drugs involved, was 30 years to life in prison. Two decades in a cage is a hell of a thing to require based on facts found by a single person (and not even beyond a reasonable doubt).

Booker, as it turned out, was actually two decisions for the price of one. In the first, the 5-4 majority followed Blakely and held that the US Sentencing Guidelines violated the Sixth Amendment. In the second, a different 5-4 majority held that rather than leave it at that and let lower courts and Congress sort it out, the appropriate remedy to resolve the issue was to strike down the statutory language that made the Guidelines mandatory in the first place. Thus were the advisory Guidelines born, which we’ve had ever since.

What made for these two conflicting opinions? After all, most of the majority for the remedial opinion were dissenters from the other opinion (led by Justice Breyer, who helped draft the initial Guidelines). It was Ginsburg – she was the fifth vote in both majorities. But in a rare instance of opaqueness, she didn’t write an opinion explaining her decision. Sure, she joined the ones written by Stevens and Breyer that were the majority opinions, but she didn’t write separately to explain why she had a foot in both camps.

In a career that made a lot of impact on peoples’ lives, Ginsburg’s decision in Booker may be her most important. Since the Guidelines became advisory in 2005 hundreds of thousands of people have been sentenced as part of a system she basically created (for some idea of the numbers, in its last report to Congress on the impact of Booker, the Sentencing Commission noted that more than 85,000 defendants had been sentenced in the past year). Yet there was no sweeping opinion, no reading from the bench to spur Congress into action. Just a decision, made thoughtfully I’m certain, but without any transparency.

Are we – or, should I say, are federal criminal defendants – better off with the advisory Guideline scheme rather than whatever else Congress might have created? Hard to say, given how little experience the system has with juries finding sentencing facts. I will say that judges have seized their authority under Booker (and its progeny) to vary from and, in some cases, completely ignore the “advice” provided by the Guidelines. Still, they exert a kind of gravitational pull at sentencing and are pretty central to most proceedings. It’s the irony that gets me, I suppose. Ginsburg was arguably the Court’s most public face over the past few years. That she has had such a major impact without doing much more than casting a vote seems out of whack, but such is life. And the law.

My First Web Page!

I was trying to go all Marie Kondo on my bookmarks the other night when I came across an Internet Archive link to a fun bit of my past – my very first web page!

Now, this wasn’t the original version (for one thing, it was originally 100% image free!), but this gives you a fair idea of what things were like in the days before easy-to-use blog software like our platform here at WordPress. In fact, this was current to just before I started my current job. Each of those links went to a separate page, coded in HTML (very basically) by yours truly. What was I talking about back then?

Mostly music, if I’m honest. Probably the busiest part of the site, and the one that got me some connection with actual readers, was the album reviews page. Starting when I was in law school (when the page originally went up) I reviewed pretty near every album I got. As you can see from the list of reviews, I was digging into the expanding world of progressive rock, which I’d thought died in the 1970s. I stopped doing those (around 2000, it looks like) because I wound up only being interested in writing about the stuff that was really great or really awful and ignoring the stuff in the middle (which was most of it, after all). It’s the same reason these days that my “Weekly” posts aren’t anywhere near weekly – I really don’t write a review unless I have something to say about a piece of art these days.

Aside from reviews, I had the unmitigated Millennium-fueled gall to put together a list of the “Top 100 Musicals Works of the Twentieth Century.” Holy shit, the audacity! Even though I limited it to stuff I’d actually heard, I still must have been feeling pretty full of myself. These days if I did something similar I’d put “favorites” in the title prominently, just to make clear it was all one guy’s opinion. Digging around the Archive I found the list itself, which I’ll reproduce here for the sake of posterity:

First Suite in E-flat for Band, by Gustav Holst (1911)
Lu Sacre di Pritemps, by Igor Stravinsky (1913)
The Planets, by Gustav Holst (1918)
Firebird Suite, by Igor Stravinsky (1919)
The Pines of Rome, by Ottorino Respighi (1924)
Rhapsody in Blue, by George Gershwin (1924)
Concerto de Aranjeuz, by Joaquin Rodrigo (1939)
Commando March, by Samuel Barber (1943)
Testament of Freedom, by Randall Thompson (1943)
Appalachian Spring Suite, by Aaron Copland (1945)
Symphony # 3, by Aaron Copland (1945)
Concerto for Clarinet and String Orchestra, by Aaron Copland (1946)
La Fiesta Mexicana, by Owen Reed (1949)
Symphonic Songs for Band, by Robert Russell Bennett (1957)
Time Out, by The Dave Brubeck Quartet (1959)
Kenton’s Christmas, by Stan Kenton (1961)
Symphony #13 (Babi Yar), by Dimitri Shastakovitch (1962)
Elegy for a Young American, by Robert LoPresti (1965)
Variations on a Korean Folk Song, by John Barnes Chance (1965)
Music for Prague 1968, by Karel Husa (1968)
Abbey Road, by The Beatles (1969)
Hot Rats, by Frank Zappa (1969)
In the Court of the Crimson King, an observation by King Crimson (1969)
Tommy, by The Who (1969)
Nursery Cryme, by Genesis (1971)
Pawn Hearts, by Van der Graff Generator (1971)
Storia di un Minuto, by Premiata Forneria Marconi (1971)
Fragile, by Yes (1972)
Close to the Edge, by Yes (1972)
Thick as a Brick, by Jethro Tull (1972)
Brain Salad Surgery, by Emerson, Lake and Palmer (1973)
Dark Side of the Moon, by Pink Floyd (1973)
Octopus, by Gentle Giant (1973)
Quadrophenia, by The Who (1973)
Selling England by the Pound, by Genesis (1973)
Red, by King Crimson (1973)
Relayer, by Yes (1974)
Electromagnets, by The Electromagnets (1975)
Katy Lied, by Steely Dan (1975)
The Rotters Club, by Hatfield and the North (1975)
Wish You Were Here, by Pink Floyd (1975)
Romantic Warrior, by Return to Forever (1976)
Seconds Out, by Genesis (1977)
Briefcase Full of Blues, by The Blues Brothers (1978)
Hemispheres, by Rush (1978)
Just A Game, by Triumph (1978)
Of Queues and Cures, by National Health (1978)
Please Don’t Touch, by Steve Hackett (1978)
UK, by UK (1978)
At Budokan, by Cheap Trick (1979)
Joe’s Garage, by Frank Zappa (1979)
Sweeney Todd: The Demon Barber of Fleet Street, by Stephen Sondheim (1979)
Discipline, by King Crimson (1981)
Moving Pictures, by Rush (1981)
You Are What You Is, by Frank Zappa (1981)
All The Best Cowboys Have Chinese Eyes, by Pete Townshend (1981)
The Nightfly, by Donald Fagan (1982)
Under A Blood Red Sky, by U2 (1983)
Grace Under Pressure, by Rush (1984)
Misplaced Childhood, by Marillion (1985)
The Wake, by IQ (1985)
Bring on the Night, by Sting (1986)
Cold Snap, by Albert Collins (1986)
Graceland, by Paul Simon (1986)
Tones, by Eric Johnson (1986)
Symphony #1 (Lord of the Rings), by Johann de Meij (1988)
Vivid, by Living Color (1988)
High Tension Wires, by Steve Morse (1989)
Ah Via Musicom, by Eric Johnson (1990)
Toy Matinee, by Toy Matinee (1990)
Doo Dad, by Webb Wilder (1991)
II, by Animal Logic (1991)
Live At The Apollo, by B.B. King (1991)
The Sky Is Crying, by Stevie Ray Vaughn (1991)
The Best Band You Never Heard In Your Life, by Frank Zappa (1991)
After Hours, by Gary Moore (1992)
Bring ’em Back Alive, by The Dixie Dregs (1992)
Images and Words, by Dream Theater (1992)
Suffocating the Bloom . . ., by echolyn (1992)
UFO Tofu, by Bela Fleck and the Flecktones (1992)
Blues Summit, by B.B. King (1993)
Deus ex Machina, by Deus ex Machina (1993)
Harbor Lights, by Bruce Hornsby (1993)
Mystic Mile, by Robben Ford and the Blue Line (1993)
Awake, by Dream Theater (1994)
Brave, by Marillion (1995)
Epilog, by Anglagard (1994)
Under the Table and Dreaming, by The Dave Mathews Band (1994)
Afraid of Sunlight, by Marillion (1995)
Alive In America, by Steely Dan (1995)
As The World, by echolyn (1995)
Hot House, by Bruce Hornsby (1995)
The Light, by Spock’s Beard (1995)
Live!, by The Police (1995)
Live Art, by Bela Fleck and the Flecktones (1996)
Blood of the Berry, by Timothy Pure (1997)
more once more, by finneus gauge (1997)
OK Computer, by Radiohead (1997)
Sluggo!, by Mike Keneally and Beer For Dolphins (1997)
Vertu, by Vertu (1999)

You’ll also notice a link to what I called “Random Thoughts,” which was the closest thing I had to a regular blog back then (as you can see, “Random Thoughts Redux” was a blog proper, although it didn’t last long). This wasn’t a regular thing, more of a situation where if something struck me in a certain way I’d get riled up enough to write about it – sports, politics, a little bit of law. What’s completely missing, of course, is any writing about writing itself. I was several years away from starting to write fiction, much less releasing entire books of the stuff.

Other things on the old page were links to a project I did in law school called “Practical Moral Philosophy for Lawyers,” an attempt to grapple with some practical ethical questions in a different way. In typical lawyerly fashion, it doesn’t provide any hard answers. There were also links to my play-by-email fictional indoor soccer team, Morgantown Mountaineers FC (I think we won a couple of trophies over the years, but I can’t find any evidence of that) and my autocross exploits as Legal Eagle Racing (haltingly making a comeback in the Year of the Plague).

I’m not normally one to wallow in nostalgia. Still, it’s fun to look back at this and think I’ve been on the Internet, feeding the silence on and off for more than two decades. It’s hard to remember what it was like in the days before we all had instant platforms for sharing what we think. Whether that’s a development that’s good or bad, time will still tell.

Serious Fantasy Revisited

A few weeks ago I put up a post wondering whether people are inclined to treat science fiction more seriously than fantasy – that is, more likely to capably deal with “big” issues – to the point that it shades peoples’ perceptions of what is and isn’t fantasy. The very same day I posted that I came across another head-scratching example that I wanted to share.

Over at Tor, James Davis Nicoll posted an article about six books that “defy easy categorization” and straddle the sci-fi fantasy divide. I’ll admit that I wasn’t familiar with most of these (several went on my “to read” list). The one I was familiar with, however, left me shaking my head. That was Octavia Butler’s Kindred.

As Nicoll explains, Kindred is about a black woman from modern American (it was written in ??) who, inexplicably, is ripped back in time to before the Civil War where she is exposed, brutally and graphically, to the horrors of slavery. It’s a tough read, to be sure, but it’s brilliant. As for its classification, Nicoll writes:

But is it science fiction or fantasy? While I will grant that the physical mechanism is never explained, Dana is caught up in a stable time loop whose logic dictates much of what happens to her. . . .. Butler thought Kindred was fantasy, but it also seems perfectly reasonable to call it science fiction.

It really doesn’t, any more that it seems perfectly reasonable to give Donald Trump the benefit of the doubt on any factual dispute at this point. As Nicoll says, there’s no explanation or mechanism given for the main character’s time travel. It just happens. It’s certainly not the result of some kind of deep tech or scientific advancement. It’s more one of those Twilight Zone setups you just accept as existing, without wondering why. That, to me, is the defining feature of fantasy – here’s a world that’s different than ours, accept it (or don’t) and move on.

So why try and turn Kindred into science fiction? Could it be that it deals with deeply serious and traumatic topics that most people don’t associate with fantasy? I don’t buy the “it’s magic, but it’s magic that follow rules, therefore it’s sci-fi” logic. Brandon Sanderson’s Mistborn series (to pick an example) has a very regimented, logical, magic system (it sometimes feel like video game controls), but nobody would call it sci-fi, would they? Fun as those are, they don’t deal with the kind of issues that Kindred does, however.

I shared my original post with a group of sci-fi and fantasy writers on Facebook and got some interesting answers (and some amusing ones – to the question of “is sci-fi more ‘serious’ than fantasy,” one person just answered “yes”). The one that really caught me was this one:

Now, being a prog fan, I should have come up with this one myself. Nonetheless, I think bringing musical genres into this might help shed some light on the question. I think this is something that happens to new fans of all musical genres, but I’ve seen it repeatedly with prog fans (I may have even gone through it a bit myself): Fan of a particular bands discovers they’re generally classified as “progressive rock,” finds out that there’s more groups out there with similar characteristics, falls madly in love with “prog” as a thing and . . . starts to expand its boundaries exponentially. In other words, they go from “prog = good” to “good = prog” and try to define every band they like into their new favorite genre. No matter how great XTC are (and they are great!), they aren’t a progressive rock band – nor do they need to be categorized as such!

Is the same thing going on here? Are people who are normally drawn to sci-fi reading fantasy novels and feeling the need to reclassify them accordingly? I know sometimes there’s a rift between fans who only dig one or the other (I still remember the howls when the then-Sci-Fi Channel dares to show something that might actually be fantasy!), so maybe there’s some desire to cleave off the stuff at the margins and claim it one way or the other.

Maybe that’s what I’m doing. As I said in the original post, my beef is less about erecting boundaries around genres erasing grey areas and more the desire to see people treat fantasy (or crime fiction or romance or . . .) as just as able to raise serious issues as other genres. But maybe, in the end, it’s a lot of sound a fury and all that.

A Mountaineer In the Duke of York’s Shire

Back in the spring, when the first blush of the pandemic shut things down around the world, one of the “holy shit, this is serious” moments was when the sports world ground to a halt. In the United States the big deal was when the NCAA men’s basketball tournament, March Madness, was cancelled outright. In Europe, soccer leagues shut down one by one across the continent.

At the time, there were serious discussions about what that meant for the 2019-2020 season that was in the home stretch. Would it be completed later, keeping in mind that the 2020-2021 season kicks off in August? Would the standings be set and stone at the time things were halted, even though the season wasn’t complete? That’s the path the French leagues took, setting final tables based on points earned per game. Would the powers that be simply declare things over, void, and disappear the entire season? That’s what the Dutch leagues did.

In England, the debate about how, and whether, to finish the season centered around Liverpool FC, which were well on their way to their first Premier League title and first top-flight championship in three decades. I was more interested in what was going to happen in the Championship, England’s second tier, where Leeds United topped the table at the time things shut down. It had been 16 years since Leeds had been in the Premier League and I’d been rooting for them to get back all that time.

Why? How does a person born and raised in West Virginia come to root for a team in Yorkshire?*

While I played soccer growing up, it wasn’t really until I was in college that I became a fan of the game. Part of that was due to the 1994 World Cup, which was hosted in the United States and all over TV. Major League Soccer was an outgrowth of that, too. But what really captured my attention was the one-game weekly broadcasts of UEFA Champions League games on a regional sports station. In the Champions League the top teams from all over Europe (each nation has its own league – even each of the UK nations have their own!) from the previous season play to crown a continental champion.

That’s where I first met Leeds United.

LUFC Logo

At the time I didn’t know anything about Leeds or the county, Yorkshire, when the city is located. What I saw was a team that appeared to be overachieving. It appeared to be doing it with young talent that was largely British or Commonwealth based (it was a little odd for a newbie to see English teams primarily made up of players from around the world – I hadn’t learned about the Bosman ruling yet). In other words, they looked like underdogs and I’ve always had a soft spot for underdogs. So they won my support.

In the years since I’ve developed a little bit of an affinity for Leeds and Yorkshire. Two of my favorite bands are from Leeds, The Tangent (or at least its main man, Andy Tillison) and Kaiser Chiefs. The latter is even named after the prior club of former Leeds captain Lucas Radebe! And Yorkshire has a history as one of England’s major producers of coal, so it resonates with my West Virginia roots.

Now, at the time, I didn’t know that Leeds United had a glorious history, particularly in the mid-1960s and early 1970s  when they were one of England’s elite (around the same time progressive rock ruled the land – coincidence?). From the time I was in law school until just about the time I started my current gig in 2002, things were like that again, with the team finishing in the top five for five consecutive seasons.

Then the wheels came off. The team had made some bad financial decisions, gotten overstretched on credit, and had to sell some of its best young players. The bottom fell out and the team was relegated to the Championship and then, three seasons later, to League One (which, confusingly is England’s third tier – the equivalent to AA baseball). They bounced back to the Championship at the start of this decade, but were frustratingly underachieving, until crashing out in the promotion playoffs last year.

Which is what made the pandemic pause so nerve wracking. This season it looked like promotion was theirs to take. Would the interruption mess with the team’s chemistry? Would a compressed schedule put too much stress on Marcelo Bielsa’s thin squad? Would there even be any more games? Thankfully, the rest of the season played out and the right result ensued:

BBCLeedsHeadlineNYTLeeds

Had the pandemic not swept along, my wife and I had planned to visit England and Scotland in the spring and see Leeds play at Elland Road. We might have wound up at the game where they clinched promotion. Alas, it was not to be. At least the promotion part happened! “Marching On Together” as they say.

* I should note that I do my soccer loyalties like some people do publishing rights – for the United States and then for the rest of the world. I root for DC United in Major League Soccer. Who suck so bad right now they’re giving me all the soccer pain I can handle.