Monthly Archives: May 2015

The Hedgehog’s Array: May 29, 2015

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Noteworthy reads from the last week:

“ A Plea for Culinary Modernism,” Rachel Laudan
“As an historian I cannot accept the account of the past implied by Culinary Luddism, a past sharply divided between good and bad, between the sunny rural days of yore and the gray industrial present.”

“In Europe, Fake Jobs Can Have Real Benefits,” Liz Alderman
“Inside virtual companies, workers rotate through payroll, accounting, advertising and other departments. They also receive virtual salaries to spend within the make-believe economy.”

“What are modern museums really for?,” William Cook
“Dunham Massey’s success shows there’s no need to bore the punters with the whole story. Visitors can find that online. Instead, museums need to find something, anything, no matter how small or incidental, that people can connect with.”

“Corpse Brides and Ghost Grooms: A Guide to Marrying the Dead,” Ella Morton
“So you want to marry a ghost.”

“Training Young Doctors: The Current Crisis,” Lara Goitein
“In the 1890s, Sir William Osler, now regarded as something of a demigod in American medicine, created at the Johns Hopkins Hospital a novel system for training physicians after graduation from medical school. It required young physicians to reside in the hospital full-time without pay, sometimes for years, to learn how to care for patients under the close supervision of senior physicians.”

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Questions of Life and Death—The Tsarnaev Case

The lethal injection room at San Quentin Prison via Wikimedia.

The lethal injection room at San Quentin Prison via Wikimedia.

On Friday, May 15, after fourteen hours of deliberation, a Boston jury submitted a twenty-four page verdict that found that “death is the appropriate sentence for Dzhokhar Tsarnaev.” The verdict followed the trial that ended last month with Tsarnaev’s conviction on thirty charges related to the 2013 Boston Marathon bombings as well as the killing of an MIT police officer and the wounding of a Transit Police officer. At age twenty-one, Tsarnaev becomes the youngest person on federal death row, joining sixty-one others who await execution.

Now we wait to see whether Tsarnaev will, like convicted Oklahoma City bomber Timothy McVeigh, give up his appeal rights. That move, assuming the federal government can pull together the lethal injection drugs required to carry out an execution, would potentially shorten the time to execution to three or four years. Or Tsarnaev could pursue the full range of federal appeals, creating a delay of several years. In either case, there will be plenty of time to reconsider and debate some of the questions concerning the jury’s decision to choose “death” over “life without the opportunity for parole.”

First, why did Tsarnaev’s case go to trial—with death potentially on the line—when many other murderers have pleaded guilty in exchange for life in supermax prison? The answer is prosecutorial discretion. It’s up to a prosecutor to decide whether to put death on the table, and then to take it off again in exchange for a life plea. The individual prosecutor matters immensely: At the state level, for example, just a handful of state prosecutors are responsible for a high percentage of death verdicts in Florida, Louisiana, Arizona, Pennsylvania, Oklahoma, and North Carolina.

Naturally, a defendant has no right to choose a prosecutor or decide whether his case falls under state or federal jurisdiction. The jurisdiction for a case is based on where the crime was committed and the nature of the crime. Ordinarily, first-degree murder would be a state crime handled in state court. However, Tsarnaev was charged with counts including the use of a weapon of mass destruction resulting in death and the use of a firearm during a crime of violence resulting in death—in short, acts of terrorism which are federal crimes. By charging Tsarnaev in this way and trying him in a federal court, prosecutors circumvented the Massachusetts state ban on the death penalty. Jurisdiction, then, in addition to prosecutorial discretion, affects every level of the criminal justice system, but the impact is particularly strong in death cases and leads to disproportionate, and sometimes racially correlated, results.

To call Tsarnaev’s crime significant is an understatement. Tsarnaev was sentenced to death specifically for the bombs that resulted in the killing of Martin Richard, age eight, and Lingzi Lu, a twenty-three-year-old graduate student from China. He also received a life sentence for the bomb placed by his brother Tamerlan, which killed Krystle Marie Campbell, age twenty-nine. Yet the reasons that the Boston prosecutors decided not to allow Tsarnaev to plead to life are known only to them.

By contrast, Ted Kaczynski, the “Unabomber,” ultimately killed a total of three people and injured twenty-three others through his nationwide bombing campaign that lasted from 1978–1995. Kaczynski escaped death by pleading guilty to all thirteen of the government’s bombing-related charges. Jared Lee Loughner, who in 2011 shot six people and injured thirteen, among them former US Representative Gabrielle Giffords, was also offered and accepted a guilty plea for life without parole. Known as the Olympic Park Bomber, Eric Rudolph wounded 111 people and killed one person with a forty-pound pipe bomb during the 1996 Atlanta Olympics. Rudolph also confessed to bombing two abortion clinics and a lesbian bar, acts that collectively injured several more people and killed a Birmingham police officer. He escaped death by pleading to four consecutive life terms.

We have no way of knowing whether or not Tsarnaev was given the opportunity to avoid a trial and plead to a life sentence, or if he would have taken that offer had it been made. It seems clear that there are inconsistencies when government determines when to seek death sentences.

Second, at the heart of the American criminal justice system is the right to be tried by a jury of peers from the community where the crime occurred (a right codified in the Sixth Amendment). The number of trials occurring in the federal and state systems has dropped off sharply over the last 30 years. This change correlates, at least in part, with the imposition of increasingly harsh criminal statutes that require a court to impose “mandatory minimum sentences” for certain conduct. When faced with the threat of these lengthy sentences, the efficiencies of taking a plea agreement have outweighed the uncertainties of a trial. Yet the right to have local people who were affected by the crime determine an appropriate resolution remains a bedrock principle. It is also what makes death cases so interesting. A jury in a case where death is an option must be “death-qualified,” meaning each juror has to be open to considering the death penalty. Anyone who opposes the death penalty is automatically excluded from service.

Polls show that 85 percent of Bostonians and 80 percent of Massachusetts residents opposed the death penalty for Tsarnaev. (Even the Richard family did not support the death penalty for the man who killed their son.) Only a quarter of Bostonians think the death penalty is ever appropriate. Yet it was from among this group that Tsarnaev’s jury was selected. Moreover, research suggests that death-qualified juries—which tend to have fewer black and female jurors—may be more likely to convict than the average population when reviewing the same evidence. The result of this system is a city that was horrified by the crime Tsarnaev committed and is now unsettled by the sentence.

Third, much post-verdict speculation has focused on Tsarnaev’s lack of remorse. Of course, we don’t know how the twelve jurors weighed their decision, but we do know that only two of the twelve jurors wrote on the special verdict form that they believed Tsarnaev showed remorse. It’s been reported that Tsarnaev showed no emotion either during the trial or after the announcement of the verdict. And there is the infamous photo of Tsarnaev giving the middle finger to the jail security camera.

In the federal criminal system, sentencing guidelines effectively encourage defendants to “accept responsibility” for their crimes and plead guilty in return for measurable decreases to sentences. Depending on the severity of the offense and the offender’s criminal history, just pleading guilty (even without a plea agreement) may warrant a reduction of several years to the sentence.

But should remorse play a role in the decision between life and death? When the alternative to death is life without parole in a supermax prison, living in a twelve-foot-by-seven-foot cell with a single window four inches wide, two fifteen-minute phone calls to family a month, and an hour a day where a wire cage is affixed to the cell door so that the inmate can be “outside” for recreation—rehabilitation seems impossible. There is no hope of a life after this sentence. Evidence of remorse on Tsarnaev’s part would have had no bearing on the likelihood of his rehabilitation, although it could have humanized Tsarnaev and shed some light on how and why he committed such a heinous crime.

Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.

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The Hedgehog’s Array: May 22, 2015

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Noteworthy reads from the last week:

“Monkey Day Care,” Michelle Dean
“As a toddler in 1981 and 1982, I attended a day care with monkeys. Or, perhaps more precisely, I was part of a study in the form of a day care that involved monkeys. I was two, then three. I remember nothing.”

“The Joy of Slow Computing,” Nathan Schneider
“There is a habit in tech culture of saying that the latest app ‘democratizing’ whatever it happens to do. This is lovely, but best not to confuse it with actual democracy.”

“The Inexplicable,” Karl Ove Knausgaard
“In many ways, I find it repellent to write about Anders Behring Breivik. Every time his name appears in public, he gets what he wants, and becomes who he wants, while those whom he murdered, at whose expense he asserted himself, lost not only their lives but also their names—we remember his name, but they have become numbers.”

“A Brief History of Spacefarers,” Margaret Lazarus Dean
“Stories about astronauts are stories about risks. It is precisely the risks they take that make us admire them, that makes the wonders they encounter so wondrous.”

“Google, Why Won’t You Let Me Forget My Divorce?,” Christopher Null
“I asked a friend who was a former Googler for advice, and much to my surprise he said that he actually knew a guy who worked on that very product. An insider would surely be able to fix this with a few taps of the keyboard, right? Wrong.”

Hedgehogs abroad:

“Virtual Reality as Moral Ideal,” Matthew B. Crawford
“In the old Mickey Mouse cartoons from the early and middle decades of the twentieth century, by far the most prominent source of hilarity is the capacity of material stuff to generate frustration, or rather demonic violence.”

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Tipping Points

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Leon Trotsky refused to tip, or so the story goes. In 1917, when he lived for ten weeks in the Bronx, he would lunch in Jewish émigré cafés. There, he not only declined to tip, but would also instruct the other customers to follow his example. Neither of these actions endeared him to the waiters, who would spill soup on him in revenge. Trotsky remained unmoved. Eventually, the waiters refused to serve him—which, it turns out, was Trotsky’s goal. Tipping, he believed, subsidized unfair labor practices. If the waiters were being paid enough, tipping would be unnecessary. Until then, they should refuse to do their jobs.

Today, many Americans are guiltily aware that their waiter or waitress makes less than the minimum wage and accordingly adjust their tipping habits upward. (The habit is so ingrained at this point that even in Seattle, where there is no “tipped wage” and the minimum wage is being raised to $15 per hour, people continue to tip.) Although they’d be ill-advised to follow Trotsky’s example, their generosity may not be as helpful as they would like to imagine. Readers of Sarah Maslin Nir’s New York Times exposé of nail salons—where workers are often paid, under the table, as little as $10 per week (and sometimes nothing at all)—might assume that the solution is to tip more. But Nir believes that this is no solution at all:

What about simply tipping more? This is also a fraught question. Manicurists, of course, depend upon tips, but they say their gratuities are frequently skimmed, or particularly if they are put on a credit card, never delivered. The impulse to make up the deficit in a worker’s pay with more in tips may be a noble one, according to advocates, but does little to solve the root problem, and in fact may perpetuate it. Owners often believe that the tips workers receive mean they do not have to pay as much in wages.

Tipping occupies a curious cultural position. It has been unpopular and controversial for almost as long as it has been around, but being a good tipper has become almost synonymous with being a good person. Its unpopularity, in fact, only seems to reinforce its virtuousness. And few ordinary subjects of conversation are as immediately explosive. Definitions of “standard” tipping vary so wildly—as do philosophies of tipping—that even people who tip the same amount can end a conversation disgusted with each other. Continue reading

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Culture, Authority, and the University

"Scholars at a Lecture," William Hogarth (1736).

“Scholars at a Lecture,” William Hogarth (1736).

Even the title—“What’s the Point of a Professor?”—makes it clear why Mark Bauerlein’s recent op-ed in The New York Times struck such a sensitive nerve. Bauerlein, a professor at Emory University, observed that in an era when “when college is about career more than ideas, when paycheck matters more than wisdom, the role of professors changes.” Students no longer seek to converse with professors, or even to learn from them. They want to get a grade and move on. The situation isn’t hopeless, Bauerlein argues. If professors would only devote more time to engaging with their students, some of these students might be changed.

The reaction to Bauerlein’s critique has been sharp. As L.D. Burnett points out in her important column, Bauerlein does not acknowledge the extent to which budget cuts have transformed universities. And as others have rightly noted, many hard-working professors still care deeply about and devote significant amounts of time to teaching well.

Below structural changes lie deeper cultural shifts. Bauerlein blames students for not caring and professors for not devoting enough care, but perhaps what is really at stake here is the shifting nature of authority in American life. The real issue is that administrators, the faculty, and students do not accept the authority of the university itself. In an age when growing old is unacceptable, acting as young as you feel is obligatory, and adulthood has lost its moorings, authority too is adrift.

Signs of this lost authority abound: First, universities have been thoroughly consumerized. They offer the courses and programs students want. As demands of the students shift, universities make accommodations—which suggests that there is no academic core that defines a college education. Second, universities invest their resources in building beautiful college campuses and providing student amenities, while cutting the tenure-line faculty. And third, universities have cut back on general education programs and invested in online programs to offer students what they want, how they want it, and as fast as they can get it—rather than offering what the faculty (as authority figures) think students need. Have it your way.

Many of these changes are being imposed by well-paid administrators (whose ranks steadily swell). But the faculty, too, have become uncomfortable with their own authority. Faculty members do not see themselves—or, rather, too few faculty members see themselves—as engaged in the moral and intellectual formation of young people. This does not mean that professors do not care or devote too little time to thinking about how to help students learn the material. It does mean that they are reluctant to assume the role of authority figures or be charged with contributing to the intellectual and moral formation of their students. Focusing on only the narrowest conception of student achievement, intellectualism without a soul, they reveal their uncertainty about the moral foundations of their work.

Ironically, the decade of the 1960s that Bauerlein looks back to with fondness was part of the problem. It inaugurated what Daniel Rodgers has called the “age of fracture,” an era in which anti-institutionalism replaced thinking institutionally, in which free choice and free markets mattered more than participating in shared social institutions.

Until we come to terms with what the loss of authority in our culture means—a loss that is clearly evident in our universities—students will only be reinforced in their view of themselves as consumers, empowered to study whatever they wish. So long as university administrators cater to the student-consumer; so long as professors are unwilling to see that the formation of students is both a responsibility and an opportunity (and not an exercise of coercive power); so long as students think they have to go to college, whether they truly want to or not—so long as these things are true, the challenge will be even greater than Bauerlein imagines. Professors matter a lot, but a good university education requires more than a good professor.

Johann Neem, professor of history at Western Washington University, is a visiting faculty fellow at the Institute for Advanced Studies in Culture at the University of Virginia.

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The Hedgehog’s Array: May 8, 2015

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Noteworthy reads from the last week:

“Are Emojis a Language?,” Becca Rothfeld
“But do emoji, which comprise so much of our textual communication, really constitute a language?”

“The Price of Nice Nails,” Sarah Maslin Nir
“The New York Times interviewed more than 150 nail salon workers and owners, in four languages, and found that a vast majority of workers are paid below minimum wage; sometimes they are not even paid.”

“Why Scientific American’s Predictions from 10 Years Ago Were So Wrong,” Sarah Zhang
“Recently, we did an experiment: We took an outdated issue of a respected popular science magazine, Scientific American, and researched exactly what happened to the highly-touted breakthroughs of the era that would supposedly change everything. What we discovered is just how terrible we are at predicting the long arc of scientific discovery.”

“The Attention Brokers,” John Herrman
“The marginalization of web publishers has been swift. This week seems to be a milestone, at least psychologically, as Facebook, which routes an enormous proportion of the world’s mobile web traffic, prepares to assume the role of funder, distributor and host for news.”

“Minding the Monster,” Ed Tubb
“For thirty years, Budreo had been in and out of prison for sexually assaulting children. Every time he got out, he got drunk and did it again. Besides, his case had become notorious, and his face was in the news. He’d never get a job, and he’d never make friends. Who was Haley to think he could help?”

Hedgehogs abroad:

“Organizing Enlightenment,” Scott Jaschik and Chad Wellmon
“In this sense, my book is a history of a cultural anxiety. In an age of media surplus and easily accessible information, what counted as authoritative and legitimate knowledge? Which sources should be trusted and which not?”

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The Hedgehog’s Array: May 1, 2015

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Noteworthy reads from the last week:

“David Simon on Baltimore’s Anguish,” Bill Keller
“The mass arrests made clear, we can lock up anybody, we don’t have to figure out who’s committing crimes, we don’t have to investigate anything, we just gather all the bodies—everybody goes to jail.”

“Frontiers of the Stuplime,” Katy Waldman
“There’s something wonderful about this dogged insistence on having nothing whatsoever to show for your time in class, especially given the cultural rage for productivity. And the seminar courts a drifting boredom that is seductive in its challenge to the cult of mindfulness. But: With the approval of the UPenn English Department, Goldsmith’s crafted a creative writing course that fails to generate any writing, one that to some extent paints basic college benefits like insight, growth, and learning as passé fantasies of the old guard.”

“On Intellectual Genealogies,” Matthew Schmitz
“Paul begat Augustine.”

“The Strange Afterlife of Edgar Allan Poe’s Hair,” Elon Green
“In the 166 years since his death, locks attributed to Poe have turned up in a number of places and collections, private and public.”

“The Eternal Return of BuzzFeed,” Adrienne LaFrance and Robinson Meyer
“In their respective eras, Time, USA Today, and MTV were all revolutionary. Each of those three companies had a different set of innovations, a different rise, a different fall—and each offers a different way of understanding BuzzFeed.”

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Throwing Away the Key

When he was eighteen, Rene Lima-Marin and a friend robbed two Colorado video stores of around $11,500 in total, threatening the employees of both establishments with a gun. Both men were charged with two counts of first-degree burglary and three counts of aggravated robbery. Under pressure from years of rising gang violence in Denver, Colorado’s 18th Judicial Court answered the growing public outcry with tough, new sentencing protocols. Lima-Marin found himself labeled a chronic offender, likely to commit further crimes if he remained free. Offered seventy-five years if he pled guilty, he decided to risk going to trial, hoping that a lenient judge would find some or all of the evidence inadmissible. That didn’t happen, and Lima-Marin ended up paying what the National Association for Criminal Defense Lawyers call a “trial penalty”: a far greater sentence resulting from the efforts of prosecutors to make good on their threats to add extra charges if an individual goes to trial. Convicted, Lima-Marin was sentenced to ninety-eight years.

Rene and Jasmine Lima-Marin on their wedding day in June 2013 with their son Josiah, left, and Jasmine's son Justus. Courtesy the Lima-Marin Family via

Rene and Jasmine Lima-Marin on their wedding day in June 2013 with their son Josiah, left, and Jasmine’s son Justus. Courtesy the Lima-Marin Family via

What makes the case remarkable is what happened next. In what his attorney legitimately believed was the result of an appeal (but was in fact the product of clerical error), Lima-Marin came up for parole after serving only a decade of what was essentially a life sentence. Released, he immediately moved in with his former girlfriend and became stepfather to her son. He found and held jobs. The couple married, became regular church-goers, bought a home, and had a son together. Lima-Marin mentored at-risk youth and coached his stepson’s soccer team. He committed no new crimes and successfully completed his five years on parole.

Then, five years and eight months after he was released, Lima-Marin received a call notifying him that his release had been a mistake and that a judge had signed the order for his arrest. He was picked up the very same day and, after a quick hearing, was taken back to prison where he faced at least seventy-five more years before possible parole.

All students of criminal law learn that there are five different justifications for the punishment of those who commit crimes: retribution, deterrence, rehabilitation, restoration, and incapacitation. In federal criminal practice, these rationales are explicitly spelled out by statute. And yet with all of these considerations supposedly in play, the vast majority of criminal sentences in the United States are handled with two tools, sometimes combined: financial fines and incarceration (often followed by a period of supervised release or probation). Our bluntest tool—incarceration—takes account of retribution (punishing a societal wrong), incapacitation (keeping someone dangerous off the streets), and deterrence (providing a disincentive for committing this kind of criminal behavior). Financial penalties reflect the need for restoration (making a wrong right), at least in cases of fraud and theft, although for the vast majority of offenses that result in fines (driving offenses or other crimes against “society”), the imposition of a monetary payment appears to be more about retribution and deterrence than anything else. Moreover, when fines with quickly accruing interest go unpaid, incarceration often results.

But while fines and incarceration satisfy most justifications for punishment, it would be hard to argue they do anything for rehabilitation. Indeed, with many jails and prisons now offering prisoners little or no any access to educational opportunities (sometimes even basic GED classes), vocational training, or mental-health or addiction treatment, few would say that incarceration is serving any rehabilitative purpose.

Although not alone, philosopher Jonathan Jacobs makes a persuasive case that incarceration, far from rehabilitating, usually has a corrosive effect on the character of prisoners. He points to several contributing factors: a lack of autonomy, the (at least seeming) arbitrariness of disciplinary regulations and sanctions, the constant threat of violence, the lack of meaningful social interactions, and inadequate mental-health care. Additional post-incarceration hurdles faced by a convicted felon (lack of access to government benefits and loans; severely limited employment possibilities) only increase the likelihood that he or she will be driven back to crime.

The most recent Bureau of Justice statistics on recidivism provide rates for state prisoners released from incarceration in 2005, but the results are staggering nonetheless. Two-thirds of the state prisoners tracked in this study were re-arrested (not necessarily re-convicted) within three years of their release. That number jumped to three-quarters within five years of release.

The case of Lima-Marin should make us stop and ask why we punish, and what happens to those we punish. The system of parole (abolished federally and in many states) used to provide for indeterminate sentences with the possibility of earlier release depending on a defendant’s behavior and demonstrated rehabilitation. The movement to abolish parole in the 1990s coincided with the push to legislate mandatory minimum sentences, the aim of both being the elimination of discretion, and therefore discrepancies, among criminal sentences.

But uniform sentencing is both a blessing (arguably counteracting racial and other biases) and a curse (removing the ability of a judge or parole board to individually assess an offender). Perhaps more important, eliminating parole removes the political risk of a recently paroled offender’s committing a new and grisly crime and the public outcry in response. Ultimately, though, the demise of parole sends a deeply demoralizing message to the incarcerated: We don’t care what you do to try to rebuild your life while you are in prison. In a much publicized contrast to the American system, Norway caps criminal sentences at twenty-one years, extending them in five-year increments only if it is determined that an offender is not rehabilitated by the end of his or her initial term.

Lima-Marin beat the odds on rebuilding his life without committing another crime within five years after his release, and he did so after serving only about a one-tenth of his sentence. In addition to causing us to think about the sheer length of the sentence he received at age 18, might not his story suggest that rehabilitation needs a more prominent place in our thinking about the means and ends of punishment?

Lisa Lorish is an assistant federal public defender in the Western District of Virginia and a graduate of the University of Virginia School of Law.

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