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.

Weekly Read: Dangerous Melodies: Classical Music in America from the Great War Through the Cold War

Music, those who make it and consume it often think, is a universal language. A beautiful melody or an infectious rhythm or a soothing wash of noise doesn’t require any kind of verbal communication to enjoy. Surely if there’s something that can exist outside of the mess that is politics, music should be yet. Sadly, the takeaway from Jonathan Rosenberg’s Dangerous Melodies: Classical Music in America from the Great War Through the Cold War is that politics, like religion, poisons everything, in spite of anyone’s best intentions otherwise.

Dangerous Melodies examines this through a particular lens – the American classical music community and how it interact with the First and Second World Wars and the early part of the Cold War. In each era, political considerations informed what was played, by whom and where.

One of the fascinating things about the WWI section of this book (along with PANDEMIC, which of course covers that time period) is how fervent people were with regards to the war and the United States’ role in it. Of course, this was the period of the Sedition Act and the Supreme Court’s deeply horrible First Amendment law, but it really brings the xenophobia home when you hear about German musicians being interned for nothing more than their nationality.

German composers proved a particularly tricky proposition, since, at the time, the American classical music scene was heavily indebted to Germany composers and musicians. Wagner, of course, featured prominently in all this, but he at least had the good sense to be dead when the conflict began. Discussions about whether to continue to stage his operas or play his music were a bit more esoteric than those surrounding, say, Richard Strauss, who was both very popular in American concert halls and still alive to cash the checks.

If the issue during the First World War was what to do with Germans in general, in the Second World War there was some attempt to distinguish between garden variety Germans and actual Nazis. This was easier said than done, however, since some great conductors were at least Nazi-adjacent, if not actual (if unenthusiastic) party members. Their rehabilitation after the war mirrored those of their predecessors in the Great War – in that the result of the uproar had little to do with actual facts and more to do with repeated assertions of bad behavior (I shook my head reading how a judge in a court case involving one conduct admitted there was no evident to prove his alleged sin, but enough people believed it that it didn’t matter).

One odd part about the Second World War is that, at least as Dangerous Melodies tells it, is that Wagner came roaring back and was basically unscathed. To the extent the Nazis glorified him and tried to make a paragon of the Reich it didn’t impact his work being played in the United States. On the other hand, there’s no discussion of Wagner’s well-documented anti-Semitism, which would seem like a pretty good reason for programming other stuff while the Holocaust is happening.

Where the intersection of classical music and the two World Wars was largely about restricting what was played (with one notable exception I’ll discuss in a moment), once the Cold War begins the tables turn. The universalists gain the upper hand, only to see that universalism weaponized in the name of American foreign policy. American orchestras made numerous state-funded tours of Europe, including behind the Iron Curtain. At best this was benevolent cultural exchange, but there was also some hope that it might show the Soviets that we weren’t all a bunch of burger eating, beer swilling, country music fans, either.

As an aside, after I read this book I listened to the Wind of Change podcast. Done by Patrick Radden Keefe (he of the amazing Say Nothing), it’s a deep dive into the conspiracy theory that the CIA wrote the Scorpions’ late Cold War hit of the same name. It doesn’t really prove that, but along the way it talks about how the American government used the same kind of state-sponsored cultural junkets in more popular music forms, too – sometimes without the knowledge of the artists.

There was one composer whose career spanned the Second World War and Cold War to devastating effect. One of the most famous and celebrated musical achievements of the Second World War was Dmitri Shostakovich’s Seventh Symphony, called Leningrad. Premiering in 1942 it was seen as embodying the resistance of the residents of that city (now, once again, St. Petersburg) to a lengthy Nazi siege. There was even a kind of bidding war over the US premier! It was a big fucking deal in a way that I don’t think we can comprehend in 2020.

But when the Cold War began, Shostakovich was drafted into the Soviet Union’s culture war against the West. There’s an episode in the book where a conference arranged in New York – assailed by Red hunters for being anti-American – winds up becoming a mouthpiece for Soviet propaganda, giving a not particularly enthusiastic speech condemning Western music that he pretty clearly didn’t write. Shostakovich got both the highs and the lows, in other words, of political influence in music.

As it happens, after I read the book, I dug out my recording of Shostakovich’s Seventh I have by the Dallas Symphony. The liner notes go into a little more detail on his most famous work and its political impact. According to his memoirs, published in 1979, it wasn’t the war anthem people made it out to be (it “had been planned” before the war started):

Naturally, fascism is repugnant to me, but not only German fascism, any form of it is repugnant. Nowadays people like to recall the prewar period as being an idyllic time, saying that everything was fine until Hitler bothered us. Hitler is a criminal, that’s clear, but so is Stalin.

* * *

Actually, I have nothing against calling the Seventh the Leningrad Symphony, but it’s not about Leningrad under siege, it’s about the Leningrad that Stalin destroyed and that Hitler merely finished off.

Where does that leave music and politics? As Shostakovich learned, they’re inexorably intertwined. Thinking that music can escape the taint of politics when nothing else can is a pipe dream. At best what music can do, better than just about any other form of art, is escape the shackles of the political sometimes and reach across barriers. It ain’t much, but it ain’t nothing.


Weekly Read: Freedom’s Detective: The Secret Service, the Ku Klux Klan, and the Man Who Masterminded America’s First War on Terror 

This is an interesting book (more interesting than compelling, sadly, given its detached, journalistic style) to think about in these times. I actually read it a couple of months ago, but it’s crept back to relevance over the past couple of weeks. How could it not, given that it tells the story of the United States’ first concerted effort to deal with racial terrorism, which also gave rise to an unprecedented expansion of police power and tactics?

It’s the story of Hiram C. Whitley, who from 1869 to 1875 was the chief of the Secret Service. At that time, the Secret Service’s primary job was dealing with counterfeiters (it’s Presidential protection role didn’t come until ??) – which it still does, by the way (one of my great Fourth Circuit victories involved a counterfeiting case). When Whitely took over he broadened the Service’s mandate (via bureaucratic slight-of-hand and without Congressional authorization) into a broader criminal investigative unit with its sights trained the Ku Klux Klan.

Not that Whitley was particularly a crusader for human rights. Before the Civil War he did some work as a slave hunter and he essentially bought his first child. During the war he led a Union regiment in New Orleans with such brutality that his men nearly mutinied. He was a shameless self promoter who wasn’t above working outside the law when he thought it was justified. He tortured prisoners. He arrested men and executed searches without warrants. He was even involved in a Watergate-style burglary and scandal later in his career.

His most lasting contribution, however, is introducing the concept of the undercover work to American law enforcement. The idea that you had to use bad people – or at least good people pretending to be bad – to catch other bad people was scandalous. In fact, the book recounts how in one counterfeiting trial, where the case was built on undercover work, the judge actually gave the jury a cautionary instruction about how unreliable undercover officers were! If only we could get an instruction like that now.

If anything, Whitley seems like the archetype of a character we’ve become familiar with over the years from all kinds of police fiction – the cop who can’t follow the rules, but it still celebrated in the end because he gets the bad guys (a trope that’s getting some fresh looks these days). You can’t argue that Whitley’s targets were evil – not just the Klan by political machines in New York City were targets – but, as this review points out, none of those resulted in convictions, partly due to Whitley’s overreaching. One of my chief criticisms of the book is that author Charles Lane doesn’t really examine what Whitley’s legacy was or how he was an exemplar of lots of cops that came after him.

That’s why the book had come back to mind in the wake of the police killing of George Floyd and the related protests. As a society we’ve been conditioned to give cops the benefit of the doubt (there’s even a “good faith” exception the exclusionary rule for Fourth Amendment violations), mostly on the expectation that if they cross the line they’ve got a damned good reason. But lines are drawn for a reason and not everybody the cops cross the line to get are “bad guys” and, even if they are, they deserve the due process of the law, too.

I won’t say we can draw a direct line from Whitley’s abuses to Derek Chauvin’s knee on George Floyd’s neck 150 years later, but there are definitely echoes there. If Whitely really was “Freedom’s Detective,” it’s worth wondering what kind of freedom it was and whether, too often, it’s been the freedom to behave badly in the name of doing good.


Why We’ll Never Win the War

Unless you’ve been living under a rock recently – or perhaps on jury duty – you’re no doubt aware that infamous drug lord Joaquin Guzman (aka El Chapo) was convicted of charges in a New York federal court that will likely leave him in prison for the rest of his life. The US Attorney had a big press conference afterward in which he hinted that maybe this time, they’ll finally make some headway in the War on (Other People’s) Drugs.

That is, of course, horseshit. I’ve long said that the War is really a war on the human desire to escape our shitty world and no amount of law enforcement is really going to change that. Writing at The New Yorker, Patrick Radden Keefe sums this up more succinctly than I’ve ever seen before:

But there is a deeper sense in which the rhetoric we use when we talk about the border and the war on drugs is misguided and always has been. The real engine for the cross-border trade in marijuana, cocaine, methamphetamine, heroin, and fentanyl is not the clever salesmanship of Mexican crooks—it’s the rampant demand of American addicts and recreational users. This is a point that seldom impinges on our national dialogue about the border with Mexico: the drug trade is dynamic. What makes it unstoppable is not weak border protections or wily Mexicans but the insatiable American appetite for drugs. Where there is money and demand, trade will flourish, borders be damned. Years ago, I interviewed a former D.E.A. official who told me about a high-tech fence that was put up along the border in Arizona. ‘They erect this fence,’ he said, ‘only to go out there a few days later and discover that these guys have a catapult, and they’re flinging hundred-pound bales of marijuana over to the other side.’

Under, over, through: as long as there is an American demand for drugs, drugs will find their way into America.

I’m in the middle of a book about another long, pointless, costly war – World War I. One recurring theme of A World Undone: The Story of the Great War, 1914-1918 is that once the Western Front settled down into a stalemate, generals kept throwing offensives at the other side in spite of all the evidence that the only result was to get lots of men killed. It’s as if no one was capable of backing away and saying, “this isn’t working, we need to try something different.” The War on (Other People’s) Drugs is the same. It’s failed and it’s been failing for decades. When are we going to realize that one more offensive, one more big prosecution, isn’t going to change anything.


Favorite Reads of 2018

Since it’s getting down to the wire – I’m not down with “Best of” lists that show up in October – I figured now was the time to give a shout out to my favorite books from 2018. Two important notes: (1) these are favorites, not necessarily bests or whatever; I just loved them, and (2) the key phrase is “that I read in 2018,” so it includes books from before 2018. With that said, here we go (in no particular order) . . .

Nemesis Games (2015)


I’ve basically been keeping one book ahead of where the TV version of The Expanse is, but with the next season on Amazon taking parts from both the fourth (Cibola Burn) and fifth (this one) books, I figured I had to get a little more down the road with this series. I read Cibola Burn this year, too, and while I got the criticisms some people had with it, I didn’t think it was this bad. In comparison to Nemesis Games, however, it was a wet patch on the road. To say “things change” in Nemesis Games is to severely undersell it. That the writing hive mind that is James S.A. Corey managed to explode the cast, sending them off in different directions before pulling them back together, is no small feat, either.

Saga, Vol. 9 (2018)


Oh, boy, that last twist. The good news is that after nine volumes Saga continues to be inventive, thrilling, thoughtful, and capable of numerous gut punches. The bad news is that writer Bryan K. Vaughn and artist Fiona Staples are taking “at least” a year off from the series before getting back to work on it. Part of me thinks that’s a good idea, but part of me worries if this shunts Saga into the realm of great, unfinished stories. Given the way this one ended, I sure hope not.

If you’re not reading Saga yet, here’s why I think you should.

The Field of Blood: Violence In Congress and the Road to Civil War (2018)


Many people know that, in the run up to the Civil War, Senator Charles Sumner was beaten by one of his Southern colleagues with a cane, providing the perfect metaphor for the turmoil that would soon rip the nation apart. What most folks don’t know is that, while Sumner’s beating stood out for its brutality, it was merely different in degree, rather than in kind, from numerous other incidents of Congressional violence. One Congressman even died in a duel (not on the House floor, to be fair). Not just a colorful “you were there” history, The Field of Blood looks back at another time when the political norms broke down and things sound frighteningly familiar to modern ears.

Johannes Cabal the Necromancer (2009)


Pure fun. Well, pure darkly humorous fun, at the very least. Johannes Cabal sold his soul to the devil. To get it back, he’s have to deal in bulk, gathering 100 souls for the devil to replace his own, all while running a demonic travelling circus right out of the darker portions of Ray Bradbury’s psyche. This was probably the most fun I had with a book this year, partly because of what I’d just read before (see below), but also because there’s a sharp, dark wit that runs all the way through it.

Shattered Earth trilogy (2015-2017)


N.K. Jemisin’s trilogy – The Fifth Season, The Obelisk Gate, and The Stone Sky – made history early this year when it won the Hugo Award for best novel three years in a row, an unprecedented achievement. Is it that good? Absolutely. The Fifth Season, in particular, is a structural high-wire act that shouldn’t work, but completely does and leaves the reader knowing precisely why it was done. The other two books don’t quite reach that level, but the overall arc of the story and the characters that drive it is brilliant. Pretty heavy (I needed Johannes Cabal . . . to brighten me up a bit), but completely worth it.

I’ve written before about these books here and here.

The Cadaver King and the Country Dentist (2018)


I wrote a review of this one here, so I won’t say much more. If you want to get really pissed off about what “justice” looks like in this country (and you should), this is the book for you.

Neuromancer  (1984)


Yeah, I know, very late to the party on this one. My college roommate read it and, for some reason, I let it get away from me. Does it hold up? Pretty much, although it’s clearly a product of its time. As a foundational text for cyberpunk it’s something every sci-fi fan and writer should check out. That it continues to tell a gripping story while introducing a lot of ideas we now take for granted is icing on the cake.

Children of Time (2015)


I gushed about this one right after I read it, so check out the details here. Suffice to say, any book that can make you care about the macro evolutionary development of sentient spiders is an achievement.

Scraping the Bottom of the Bucket(head)

One of my favorite Monty Python sketches – a “deep track,” if you will – is one where the whole crew (even Neil Innes) engage in suitably breathless election result reporting. Along the way we learn the fates of the Sensible party, the Silly party, and, eventually, the Very Silly party:

I’ve always assumed that was just satire about the pointlessness of politics. Little did I know that this was closer to a situation of art imitating life than I could imagine.

In the wake of the recent British elections, Christa over at Lawyers, Guns & Money tells us the tale of Lord Buckethead, occasional candidate for parliament. Lord Buckethead comes from a low-rent rip off of Star Wars and looks about like you’d expect a generic Darth Vader with a bucket on his head to look like. Freed from the service of that second-rate narrative, Lord Buckethead has run for Parliament three times since 1987 – all against Tory Prime Ministers.

Now, you might be thinking that even in the United States we have our share of nutty candidates who file papers. What’s different is that in this country we make sure nobody actually sees them during the process. By contrast, in the UK, Lord Buckethead (and whoever the Very Silly party is running) get to be on stage with the “real” candidates when the results are announced. As a result, things like this happen:

How would Lord Buckethead fare in American politics? Hard to say, but he’d at least have to find a different name. We’ve already got a strange guy with a bucket on his head – and he’ll shred all over that stove-pipe motherfucker’s ass:

This Argument Makes No Sense

Authorities in New Orleans have begun removing from public land a group of monuments dedicated to the Confederacy. It says something about how touchy a subject this is that the people doing the work had to be masked and protected by police snipers.

Among all the wrangling about this there’s one argument from the enablers of the Lost Cause that I just don’t understand, since it makes no fucking sense. It’s made repeatedly in the comments to this story in the Guardian. Here’s a representative sample, responding to the article’s point that this isn’t an issue of erasing history:

Yes it does. You have removed a piece of history from public view. Say you were walking past it with your young child and they said, “Daddy, what does that statue represent” then you could explain to them. Otherwise they are unlikely to learn about the past that has been removed, unless they teach it in school. But even then it’s not the same because it’s just words in books. It’s like removing fossils.

I can only figure that this is a post-hoc rationalization for a knee-jerk opposition to anything perceived as being done in the name of “political correctness,” because a couple seconds of thought shows is just doesn’t make a damned bit of sense.

Take this to its logical conclusion – once a monument of some kind has been erected, it can never be taken down without “erasing history.” If that’s true, we’re not exactly innocent:


Then there’s the wholesale destruction of Nazi symbols and such in Germany following World War II. Or the toppling of statues of Stalin or Lenin following the end of the Cold War. The idea that monuments have infinite shelf lives simply isn’t rooted in history.

Beyond that, if a monument is history that can never be erased, does it create a perpetual obligation upon future taxpayers to keep it in good repair? Neither of those things can be true – they just don’t make any sense.

Let’s hypothesize using a silly example. In Futurama we learn that, sometime between Fry being frozen and thawed out, New York had a supervillain for a governor. Not only did he “collect” a bunch of famous monuments from around the world, he even added himself to Mount Rushmore:


Now, years after the fact, are the citizens of New New York required to look at the face of evil everyday in the name of history? Do they have to pay to keep the super villain’s face looking crisp and life like? I’d say the answer is clearly no, but I’m not sure how those “this is erasing history” people could reach that conclusion.

Monuments and memorials are put up for a reason – because the people of that community at that time thought they were appropriate. There’s no magic in those intentions, nothing that shields the thing memorialized from future scrutiny. It’s entirely appropriate for future communities to decide that this thing is no longer worth celebrating.

The False Unity of Opposition

I had a thought on election night back in November, as we slowly crawled to the fact of President Trump. I wished I’d blogged it back then, but I’ll just have to ask you to trust me about this.

The thought, as I sat there and contemplated Republican control of both houses of Congress and the White House, was this – can the “party of no” go from playing opposition to actually governing? Recent events suggest they may not.

Since the passage of the Affordable Care Act (aka “Obamacare”), Republicans have pledged to repeal it. It was a promise Trump embraced enthusiastically during the campaign. If there was one clear thing Americans could expect a united GOP power structure to do, it was to gut Obamacare. Last Friday, House Speaker Paul Ryan withdrew the proposed “repeal and replace” bill, rather than watch it go down in flames on the House floor. Democrats only had to smirk from the sidelines.

What the hell happened? How could a party so unified in the past about a goal fall apart so quickly?

Because being the opposition helps creates a false sense of unity among those doing the opposing. Think about it – so long as the only thing a group has to do is say “no” to some outsider they don’t have to deal with their own internal divisions.

Make no mistake – during the Obama years, the GOP was the opposition. While they controlled both the House and Senate (for varying lengths of time), it wasn’t enough to override a veto, if it came to that. Measures with bipartisan support were possible (if vanishingly rare), but true GOP proposals were dead on arrival. Hence those 54 votes to repeals of the ACA, none of which actually accomplished anything (aside from being red meat for fund raising).

That’s not quite true – it papered over the differences in the party itself. After all, when the default position is anti-whatever the other party wants, it’s easy to stick together. It doesn’t matter why you take that position, only that you do. That one group of reps are coming from a deeply ideological direction and a second from a  more moderate one is irrelevant so long as they both arrive at the same result.

There’s an old saying that pure democracy is two wolves and a sheep voting on what’s for dinner. While we can assume there’s at least two votes not to eat the wolves, we might not assume there’s the same support for eating the sheep. After all, one of the wolves could be a vegetarian.

So now, I suppose, the question is – how long before the GOP wolves finally figure out how to eat the sheep.


Weekly Read: Dreamland and Chasing the Scream

I read these two books back to back because they seemed to go together. One is a sober telling of how an epidemic swept the nation, landing right in my back yard (the book itself swept through my office earlier this year). The other is a passionate call to arms about the War on (Other Peoples’) Drugs. Both are essential reading.

The Dreamland in Dreamland, by former crime reporter Sam Quinones, is a public pool in Portsmouth, Ohio. For decades it was a hub of life in the town, ever expanding. It’s decline was tied to the region’s decline as a manufacturing hub. As jobs went away and poverty grew, addiction to powerful new opioid painkillers, and then heroin, ravaged the region. Dreamland was the perfect metaphor, withering away to merely a memory.

In Dreamland the book, Quinones lays out the perfect storm of factors that led to the opioid epidemic, which continues to claim lives all over the industrial Midwest and Appalachia. It’s made of three strands. The first is a revolution in the medical conception of pain, especially long term, chronic pain, and that it could and should be treated with powerful drugs. The second is the search for a safe drug to meet that need, which eventually led to Oxycontin. The third is slow expansion of a particular kind of heroin distribution operation from a particular small town in Mexico, Xalisco. As the “Xalisco Boys” operation spread into regions not generally thought of as “heroin country” (like West Virginia), they found a fertile ground of addicts already hooked on Oxycontin and looking for a cheaper, better fix.

Each strand has some particularly interesting stories to tell, although they’re not all of equal interest. The retail heroin distribution of the Xalisco Boys is, in fact, quite interesting – unlike the violent drug gangs who sell stepped-on product as a means to enhance the bottom line, the Xalisco Boys competed simply by selling a better product for less money. No violence and a focus on customer service. It makes getting heroin like ordering a pizza – an analogy to which Quinones returns over and over again. That’s the book’s main failing – it treads over the same ground repeatedly, particularly when it comes to the Xalisco Boys.

The other two strands weave together more effortlessly, particularly since they share a common root. In the 1980s a doctor published a “report” – really just a one-paragraph letter to the editor of a medical journal – that his practice hadn’t shown that patient who received powerful pain killers became addicted to them. This became the basis for Oxycontin advertising that opioid medications weren’t addictive, which recent history has shown to be completely false.* In the post-truth era of President Trump and “fake news,” it says something that the basis for Oxycontin’s development and sales was so poorly vetted because there was no profit to be gained in confirming it (because there never was in debunking it).

That’s one interesting linkage between the sellers of Oxycontin and the Xalisco Boys that Quinones hints at, but doesn’t quite make. Both are driven in what they do by the most basic of motives in a capitalist society – not just to make a profit, but to make as much of it as possible. That’s what drove the Xalisco Boys to look for untapped heroin markets. That’s what drove the Oxycontin peddlers to skip past the possibility of addiction and push doctors to prescribe the pills for damned near everything. The bottom line can be damned scary thing.

Dreamland is far from perfect. As stated above, it’s redundant, even beyond the stories of the Xalisco Boys. It’s also pretty dry writing, although it gets the point across. More important, Quinones gives short shrift to the fact that Oxycontin and other powerful pain killers are, for some patients, their only means of dealing with their pain. It also falls into a familiar pattern – of drug dealing bad guys (of various kinds) and good guy cops fighting to stop them – without providing any insight as to whether that’s a battle worth fighting.

Where Dreamland is a sober telling of an important modern story, Chasing the Scream is a polemic, a call to wake up to the failure of the War on (Some Peoples’) Drugs after more than a century. Dreamland should depress you – Chasing the Scream should piss you off.

Chasing the Scream is journalist Johann Hari’s chronicle of his attempt to figure out how the drug war began and where it’s headed. He travels the world, from his native UK to North America and elsewhere seeking answers about policy, addiction, and alternatives to prohibition. If in the end he doesn’t come up with a singular policy proposal to end the drug war, Hari at least convinces that it’s a war that needs to end (full disclosure – 15+ years of criminal defense practice convinced me of this long ago).

One thing he collects along the way are a cast of rich, memorable characters, from the transgendered former dealer in New York City and the former addict who transformed a particularly seedy portion of Vancouver to an addict who died in prison, cooked alive in the Arizona sun, and a mother whose pursuit of justice for her daughter in Mexico just produced further violence. Most key to the Hari’s book, however, is Harry Anslinger.

Anslinger was the head of the Federal Bureau of Narcotics (the spiritual predecessor to the modern Drug Enforcement Agency) for more than three decades and was, to Hari’s telling, the paradigmatic drug prohibition enforcer. He saw addicts as less than human, used racial and ethnic hatred to stir up panics to grow the power of his office, and was an overall asshole (the “scream” of the title refers to a trauma of Anslinger’s early childhood). Along with jazz great Billie Holiday (one of Anslinger’s high profile targets) and gangster Arnold Rothstein (the prototypical violent drug lord), Anslinger’s ghost hovers over the entire book as the project he started, the War on (Other Peoples’) Drugs expands and is entrenched.

Anslinger is Hari’s antagonist and he spends most of the book looking at the impact of his drug war on those caught up in it and challenging the assumptions underlying it. Of particular importance, he emphasizes the psychological model of addiction over the pharmaceutical model, presenting evidence that most drug users consume their product of choice without much problem, like most people drink alcohol without becoming alcoholics. Along the way he suggests that the scientific literature is clear about the limited addictive power of opioid pain killers, for instance, a claim that Quinones severely undermines.

Compelling as the stories of those caught up in the drug war are, the more interesting bits of Hari’s book are his examination of questions of drug use more generally, and addiction in particular, that shows the entire is more nuanced that Anslinger-style prohibitionists allow. For example, he discusses studies of drug use by non-humans, which is apparently fairly common. Elephants in Vietnam, for instance, generally steered clear of poppy fields until the United States bombing campaign drove them to seek escape from their terror.

It also allows Hari to get into various experiments with alternatives to strict drug prohibition. That includes programs in the UK and elsewhere that allowed addicts to get drugs legally, via prescriptions doled out by a state monopoly. Far from turning into drug fueled free for alls, this allowed addicts to function in everyday society and didn’t lead to more drug use. It also cut off a powerful marketing tool for drug dealers, as the addicts are their best customers. It’s no coincidence that part of the Xalisco Boys scheme that Quinones documents is how they used addicts in a new market to help them advertise and otherwise find customers.

Hari also explores broader legalization and decriminalization programs, such as those in Uruguay and Portugal. Though showing their success, Hari doesn’t dive deeply enough into the Portugal experiment, in particular, for it’s unclear how the law squares legal use and possession of drugs with criminal distribution – the drugs being used have to come from somewhere, after all. More interesting is his examination of the different arguments used by the people backing marijuana legalization in Washington and Colorado in the past few years. The disconnect (WA – drug prohibition is worse that pot being legal, even if it’s bad; CO – pot isn’t bad at all, being less harmful than alcohol) shows that even folks who see the end of the drug war in sight don’t necessarily agree on how to get to that point.

In the end, Hari doubles back to Anslinger for a stinger that brings the rot at the core of the drug war home. The stinger is – Anslinger himself was a drug dealer. He provided for a sitting United State Representative who was an addict to get a safe supply of heroin at a pharmacy (paid for by Anslinger’s agency, no less). The final irony? It was Joseph McCarthy, infamous red scare scam artist. It’s the ultimate example of the hypocrisy that leads me to call the drug war the “War on (Other Peoples’) Drugs,” because it’s rarely about the powerful and connected that are targeted, but the outcast and the hopeless. The war on drugs, ultimately, is a war on them.

Chasing the Scream, as I said, is a call to arms. Unfortunately, Hari may not be the best person to lead the charge, given his prior history with plagiarism and Wikipedia sock puppet scandals. It gives people an instant reason to disagree with anything he says, from snarky internet commenters to book critics (but see, as we lawyers say).

Dreamland is a flawed book, but essential to understanding one of modern American’s great tragedies. Chasing the Scream is the polemic of a flawed messenger about one of mankind’s great modern mistakes. Both are necessary and highly recommended.



* UPDATE: This article from Slate goes into more detail on the one-paragraph phenomenon and how it’s not an uncommon occurrence in scientific journals.

Weekly Read: Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough Three generations of imbeciles are enough.

– Buck v. Bell, 274 U.S. 200, 207 (1927)

In the rogues gallery of bad Supreme Court decisions – things like Dred Scott, Plessy, and Korematsu  – few had summed their own awfulness up so succinctly as Buck v. Bell, in which the Supreme Court upheld the constitutionality of Virginia’s law allowing the forced sterilization of the “feeble minded.” The decision was nearly unanimous (the lone dissenter didn’t write an opinion explaining his vote) and, horrifically, it is still “good law” in the 21st Century (a claim is shares with Korematsu).

Imbeciles, by lawyer turned journalist Adam Cohen, isn’t a deep legal analysis of Buck itself. Instead, it tells the story of the case by focusing on four people involved in it. First (and last) is Carrie Buck, the Virginia woman eventually sterilized for being “feeble minded.” Second is Albert Priddy, who ran the Virginia institution where Buck was committed prior to her sterilization (he dropped out before the case hit the Court, being replaced by Bell). Third is Aubrey Strode, the Virginia legislator and lawyer who helped pass the law and then defend it in court. Finally, there’s Olive Wendell Holmes, the Supreme Court Justice who authored the opinion. The result is an interesting, depressing, and angering story that provides a lot of needed background to the Court’s brief (5 paragraphs) opinion.

Cohen structures the book so that we begin with Buck’s life up to the case began and end with her life after her sterilization. In between, we get a chapter each on the background of the other guys and then a chapter covering their intersection with the case. It’s a fairly effective way to structure things, although not carried off very creatively (each chapter title is just someone’s name, like a George R.R. Martin tome). It also leads to some redundancy, particularly as Cohen uses Priddy’s and Strode’s background chapters as means to sketch out the broader picture of the eugenics movement.

That movement, though eventually discredited and forgotten (the Nazis being enthusiastic adopters of eugenics helped it slip down the memory hole), echoes in the 21st Century political diatribes about immigration and wall building. Indeed, the sterilization arguments were basically the same as the arguments for restricting the immigration of “undesirables,” with the added twist of them already being in the United States. Beyond that, sterilization was largely a way for society to deal with a perceived problem on the cheap – it was too expensive to warehouse the “feeble minded” in a more beneficent way. Sterilization followed by release into society was cheap, easy, and, thanks to the Supreme Court, perfectly legal.

I’ve read some complaints from readers that Cohen spends too much time diving into the biographies of his subjects, to the detriment of a broader understanding of the eugenics movement. I think that misses the point, somewhat. Cohen presents a good argument that Buck v. Bell was as much the result of those biographies as it was legal theory or factual findings. It’s not a complete success (Holmes may have been predisposed to support eugenics, but this wasn’t a close case), but I find it fairly persuasive. For example, see here for a law review article putting Holmes’s vote down his experiences during the Civil War (something Cohen touches on).

The personal relationships explain how the law’s most dubious component came into being. Strode drafted the law, perhaps in a way that meant to slow down its implementation. For example, he refused calls to have the sterilization scheme applied to all Virginians, rather than only those in state custody. Similar provisions in other states had been struck down on equal protection grounds. Cohen argues that while Strode was a skilled lawyer and advocate, he wasn’t the eugenic evangelist that Priddy and others were.

One of those provisions of the law was a requirement that it not go into effect until the Supreme Court approved it. On the face of it, this seems like a good thing – why not wait for the high court to weigh in? But that’s not the way the American legal system is designed to function. Courts (up to and including the Supreme Court) only adjudicate live “cases and controversies” – meaning actual disputes that require a resolution. That’s why issues of standing are so important, as there can be no actual dispute if someone doesn’t have the ability to seek redress against the other party. Our system is designed to allow two interested parties to argue against each other, present evidence to support their claims, and ultimately allow a neutral third party to pick a winner. It’s trial by combat, only less bloody and more mentally taxing.

By requiring the Virginia law to be blessed by the Supreme Court before it went into effect, Strode effectively set the stage for the farce that was Buck v. Bell. Cohen lays out how Priddy, Strode and others essentially conspired to produce a “test case” for the Court. Now, test cases and strategic litigation on social issues isn’t a bad thing – the one that always stands out to me is how the plaintiff in Brown v. Board of Education was chosen partly because the black school she attended was actually better than the closer white school she would have otherwise attended (that took the idea that it was separate, but not equal, off the table and forced the discrimination issue to the fore). But that’s different than a setup. Buck v. Bell was a setup.

That was largely true for two reasons. First, Buck herself was largely kept in the dark about the whole thing, both the operation to sterilize her and the litigation about it. It’s hard to have a real case or controversy if the plaintiff isn’t really driving the bus. Second, and more importantly, Buck’s lawyer, Whitehead, was in on it from the get go. He was friends with Strode and Priddy and did nothing that a competent lawyer would think of as competent. With only token resistance, Strode rolled through the courts and up to the Supreme Court, getting the ruling everybody wanted (and needed). This is, perhaps, the biggest flaw in Cohen’s argument that Strode wasn’t quite as on board with eugenic sterilization as the rest of those involved – he knew how the system was supposed to work and proceeded with the farce, anyway.

Ultimately, the focus is on Carrie Buck, who opens and closes the book. It’s a natural through line for the story of her particular case (obviously), but a little bit dangerous as a thread holding together a book about eugenics as a broader movement. That’s because, as Cohen makes clear again and again, there simply wasn’t evidence to support the conclusion that Buck was “feeble minded.” In fact, she appears to have been a perfectly normal person of average intelligence. As a result, the book comes dangerously close to suggesting that the real injustice is that Buck wasn’t actually a moron, rather than the state mandated sterilization of anybody. It’s a bit like telling the story of prison overcrowding through the eyes of someone who was wrongfully convicted. It’s powerful, but perhaps not for the right reason.

Imbeciles is a compelling story of a Supreme Court case, the people who guided it, and the woman who got caught up in its wake. Highly recommended.