It's really weird that we still call him Czar

My sister and I recently had a conversation about three-strikes-your-out laws and a legal system bursting at its seams. In my opinion, one of the functions of three-strikes-your-out laws (and mandatory minimum sentencing) is to speed up the sentencing process in an attempt to unclog our courts. Sis (and H) convincingly argued that it's not appropriate to ease the burden on our court system by taking short-cuts with defendants' trials and sentencing. Both of them proposed throwing more money at our legal system, but frankly, I don't think that's likely as there are a lot of things that need a lot of money right now. One of the solutions my sister and I discussed is the possibility of legalizing or decriminalizing drugs as a way to deal with judicial and prison systems that are completely overwhelmed. It turns out that recently her law school's chapter of the ACLU had hosted Jake A Cole.

Cole is passionate in his belief that the drug war is steeped in racism, that it is needlessly destroying the lives of young people, and that it is corrupting our police. Cole's discussions give his audience an alternative perspective of the US war on drugs from the view of a veteran drug-warrior turned against the war.

Cole is part of Law Enforcement Against Prohibition (LEAP), which recently featured a letter to our new head of the White House Office of National Drug Control Policy, Gil Kerlikowske. While the letter voices some concerns LEAP has with some Kerlikowske's statements, the Wall Street Journal had a story yesterday about his plan to "end the war on drugs." The article states,

The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice.
Already, the administration has called for an end to the disparity in how crimes involving crack cocaine and powder cocaine are dealt with. Critics of the law say it unfairly targeted African-American communities, where crack is more prevalent.

The article goes on to say,

The drug czar doesn't have the power to enforce any of these changes himself, but Mr. Kerlikowske plans to work with Congress and other agencies to alter current policies.

I think it will take some major political capital to convince members of Congress who are up for re-election and worried about being smeared as weak on crime to get behind some of these changes, but I also think we're getting closer. Something to keep an eye on.

Also, did you know that the ACLU has a blog?

And finally, check out Lock-Up from This American Life.

Must have Photo ID to Rock the Vote

Please check out this article from the New York Times on the case before the Supreme Court challenging the Indiana voter ID law. The law says that either you have to produce a photo ID when you vote or, if you don't have photo ID, vote provisionally and then go to the county courthouse within 10 days of voting to validate your vote. Proponents of the law claim that it is necessary to prevent in-person voter fraud. Challengers of the law claim that the law will, in effect, disenfranchise minorities, poor people, and elderly people, all of whom are less likely to have photo IDs. Voting is a fundamental right and this law infringes on that right, so the court should use "strict scrutiny" as their standard of review. (Sorry to use Wikipedia as a link, but I think this particular article does a good job summarizing strict scrutiny from what I can remember from my law school days.) Strict scrutiny means that the law must protect a compelling government interest and be narrowly tailored and use the less restrictive means to achieve that interest.

The Times article does a pretty good job of summing up how things are going (not well; divided along party lines). It really pisses me off and makes me sad that Kennedy said the law causes a "minor inconvenience" for people. I feel like he's not thinking about how truly difficult it is for some people to get to government office buildings during their hours of operation, because of the hours the person works, or not having child care, or being physically disabled. It has not been proven that there is any problem in the U.S. with in-person voter fraud, but I think it's entirely apparent that we do have a problem getting people out to vote at all. I think it's horrible that states are writing laws that make it more difficult for people to vote.

If this law gets upheld, then I really hope that registration drives start to include helping people obtain photo ID. I wonder if there is some kind of fund that could be put together to help people with the fees that accompany getting a photo ID in some states.

*

In international news, the Times reported yesterday that abortion clinics are shutting down in Spain, while the workers go on strike to protest the lack of government protection from violent and threatening pro-life protesters. I do think the Spainish government should do all it can to ensure the safety of the clinic workers and the women who use the clinics, but I can't help but think that by shutting down the clinics to protest, the clinic workers are hurting their own clients (an estimated 2,000 women will be affected) more than making a statement to the government or to the pro-life movement.

(Why does the NY Times author call the pro-life people "anti-abortion?" I would call them anti-choice. Out of politeness, I have chosen to call them pro-life here, but calling them "anti-abortion" implies the other side is pro-abortion. As I have said before, I believe both sides of this debate are committed to reducing the number of abortion; pro-life people generally believe that the way to do this is to make all abortion illegal and teach abstinence-only sex education and pro-choice people generally believe that the way to reduce the number of abortions is to keep it legal [read: safe] and promote pro-contraceptive sex education. It's disingenuous to present one side as anti-abortion and, in doing so, imply that the other side is pro-abortion. Although maybe the pro-life movement in Spain is commonly referred to as anti-abortion and that is why the NY Times has chosen this nomenclature.)

Slander, Libel, Oh My!

Today Gawker did a piece on a blogger who has create her blog in order to publicize the picture of the man she believes gave her herpes. On her blog she also documents that she flyered the neighborhood they live in with a picture of him that says, "I have herpes" across it.

I'm not going to link to the blog for two reasons. First (which will be the substance of this post), I don't want to participate in spreading a rumor and secondly, I'm pretty sure she's mostly doing this because she's blinded by anger and wants attention. (Note to everyone out there [including me], nothing lastingly good ever comes from actions motivated by feelings of anger or wanting revenge.)

Please check out the American Social Health website for information about herpes. The blogger found information that theusual incubation period is about 2 to 20 days, which is how she calculated who (she claims) knowingly infected her. Here are two things that cast doubt on her claim that come from the same website linked above: (1) Although the first reaction usually appears within 2 to 12 days, the symptoms can be so mild that the carrier does not realize that they have herpes until a subsequent outbreak, which can be years later as herpes remains in your system for life. Based on what she's posted on her blog, she cannot be sure that this is her first outbreak and she may have actually contracted herpes years ago. (2) It's estimated that 90% of people who have herpes don't know that they have it. It's likely, therefore, that this guy was not aware that he had herpes.

From a legal standpoint, setting up a blog like this is a ridiculously stupid thing to do. As Gregory A. Abbott, Esq. explains

Defamation consists of the following:

(1) a defamatory statement;
(2) published to third parties; and
(3) which the speaker or publisher knew or should have known was false.

In order for a statement to be defamatory the plaintiff must prove that the statement is damaging to his reputation, but accusing someone of having an STD is defamation per se, meaning the plaintiff is not required to proved damages.

The blogger in this case is not left without legal recourse, however. People have successfully sued others for knowingly transmitting an STD (though it is rare).


I also wonder what is really being criticized in this blogger's posts; the failure to disclose STD status or just having an STD at all. The former is certainly reprehensible. But I often find that just hearing that someone has an STD is enough to get people and their criticisms going. And if you're a sexually active adult, how hypocritical is that? First, chances are high that you have an STD and just don't know. Secondly, if you don't have an STD and you are sexual active, that is a combination of practicing safe sex and luck, but luck is a factor.

The more you know

Via Feministe, I came across this alarming (to me at least) report about a Department of Homeland Security (DHS) program to collect and keep record of the personal items people are carrying with them when they travel. The article says that the DHS is "retaining data on the persons with whom they travel or plan to stay, the personal items they carry during their journeys, and even the books that travelers have carried, according to documents obtained by a group of civil liberties advocates and statements by government officials."

Lauren at Feministe already covered how I feel about this (that the government is become more and more creepily intrusive), so I won't go into that. The article did make me wonder about how the civil liberties advocates got their information. They must have used the Freedom of Information Act (that link is the actual text, please see here where the Department of Justice [DOJ] breaks down how to actually use the act).

The DOJ says,

The Freedom of Information Act (FOIA), which can be found in Title 5 of the United States Code, section 552, was enacted in 1966 and generally provides that any person has the right to request access to federal agency records or information. All agencies of the Executive Branch of the United States Government are required to disclose records upon receiving a written request for them, except for those records (or portions of them) that are protected from disclosure by the nine exemptions and three exclusions of the FOIA. This right of access is enforceable in court, and it is supported at the administrative agency level by the "citizen-centered and results-oriented approach" of a presidential executive order (see below).

The FOIA does not, however, provide access to records held by Congress or the federal courts, by state or local government agencies, or by private businesses or individuals. All states have their own statutes governing public access to state and local government records; state agencies should be consulted for further information about them.

Here are the nine exemptions referred to above. (I wonder how much case law there is around these exemptions, because they seem like they could be invoked pretty broadly by the government and completely take the teeth out of the FOIA).

It seems pretty straight forward; requests must be in writing, you should try to send it to the correct component (and make sure what you're looking for isn't already public record), and it might cost you up to $25 (for copying). The FOIA doesn't require the government to interpret data or create new reports to answer your question.

The most interesting part to me was that you can request information about yourself or about someone else (provided they give their permission or you can prove that they are dead). It looks like that's how the civil liberties groups got their information about the extensiveness of the DHS record collecting in this case, by requesting the records on specific travelers. Maybe it had to be done that way to get around one of the exemptions, namely, exception number 7 (see link to the exemptions above).

Now that I know how it works, I really want to take advantage of this act. But I have no idea what records I would like to be released. What would you ask about?

See here for more info about how to use the FOIA.

UPDATE: See this article (via Majikthise) about a federal agent using DHS records to cyber-stalk his ex-girlfriend for just one reason I don't want the government to be collecting detailed records about me.

Have no fear, Breyer is here

This morning my mom and I were discussing Jeffrey Toobin's new book "The Nine" which is about the "Inside the Secret World of the Supreme Court" (subtitles are so helpful, aren't they?). It got me thinking about the different personalities on the Supreme Court, particularly how much I enjoyed reading Justice Stephen Breyer's opinions and dissents while I was in law school.

In 2005 Breyer wrote a book called "Active Liberty," where he lays out his views on constitutional interpretation, argues that "strict constructionism" often ends up thwarting democratic tradition, and elaborates on his opinions about some controversial cases that had recently come before the Supreme Court. While promoting his book, he went on Fresh Air. You can listen to the interview here.

In other words, if you're feeling blue about the Supreme Court these days, remember that there are still some great justices on it, even if they are the minority voice at the moment.

Without a paddle

Today my friend Jake sent me this post about the hostile (towards gay people and it sounds like towards women too) work environment at the New York Post. This sent me digging around on the current state of federal discrimination laws.

The Employment Non-Discrimination Act of 2007 (ENDA) (which would include sexual orientation and gender identity in the categories that the government protects from work place discrimination) was introduced to the House in late April of 2007. A couple weeks ago, the House held subcommittee hearings on ENDA; supporters of the bill are hoping to pass the ENDA before the end of the year.

The ENDA is intended to protect gays/lesbians/transgendered people from workplace discrimination in the same way that the the Civil Rights Act of 1964 (CRA) protects workers from discrimination based on race, color, religion, or sex. The CRA also created the U.S. Equal Employment Opportunity Commission (EEOC), which identifies harassment in the work place as a form of discrimination that violates the CRA. The EEOC says,

Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

and

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

The Federal Communications Commissions breaks it down for us a little more, with examples of harassment here.


However, the CRA does not explicitly state that harassment is a form of discrimination (and neither does the ENDA). In Meritor Savings Bank v. Vinson, the Supreme Court held

A claim of "hostile environment" sexual harassment is a form of sex discrimination that is actionable under Title VII [of the CDA]

(Sidenote: I really think that it should be a requirement that every Supreme Court opinion has a numbered list right at the beginning of whatever the Court is holding in that case. It would save us a lot of trouble.)

Although I think that were the question to come up (and were the court to follow precedent and legislative intent), courts would be forced to hold that the ENDA protects gays/lesbians/transgendered people from a hostile work environment, I think we can't be sure because it's not explicitly stated in the legislation. (If there are any lawyers/law students out there who think/know otherwise, please correct me.)

I hope it passes. And I hope gays/lesbians/transgendered people are protected from a hostile work environment. In other words, I hope New York Post winds up floating up shit creek.

I'm so glad I don't live in medieval times

After remembering that I owe her a thank-you card for a birthday present, I started thinking about my maternal Grandmother (Grandma B) this afternoon. She and I started writing letters to each other on a regular basis about a year ago. When my paternal Grandmother and my maternal Grandfather died, I realized that I had a lot of questions I wanted to ask them that I never got to.

My Grandma B has told me a lot about her life in the past year, from the general details to her feelings at the times of some of the historical events that have taken place in her lifetime. She has lead a very interesting life. She recently wrote to me that her children are the most important thing in her life, which has got me thinking about my Grandmother and reproduction (er, not specifically, more generally: Women who were born in the 1920s and reproduction). My Grandmother was a practicing Catholic throughout her marriage to my Grandfather (and remains so today). She was pregnant nine times, had two miscarriages, and seven children. Because of her Catholicism and the number of times she was pregnant, I assume she practiced the rhythm method, but I was interested to find out what other methods of contraceptives were available during her lifetime.

Check this out for (as far as I can tell) a comprehensive look at the history of contraceptives, including information on how contraceptives have been used in the past in forced sterilization/forced population control efforts. (I would be remiss if I didn't mention the darkside of contraceptives' history.)

Here's some of the interesting stuff I ran into tonight while looking into the history of contraceptives. (All of the info comes from the above Planned Parenthood site, unless otherwise noted.)

The Condom - Using a new manufacturing process known as "dipping" (which as far as I can tell means dipping glass dildos into hot latex), the modern day latex condom was created in the 1920s. Before that they were rubber and had a large seam down the side (source).

The Diaphragm - Lemon halves may have been the modern diaphragm's medieval predecessor (source). In 1915 Margaret Sanger visited a Dutch Birth Control clinical and brought back with her their idea for a flexible diaphragm that was fitted by medical staff (source and also just a cool link about Sanger).

The Intrauterine Device (IUD) - IUDs have returned to the market and are considered safe, after a serious scare in the 1970s with the Dalkon Shield. (Speaking of the darkside of contraceptive history, the Dalkon Shield was dumped at a reduced price onto third world countries just before it was removed from the market in the U.S.)

Vasectomy -- In 1916 until 1940 (when the procedure for this purpose was discredited), a doctor began performing vasectomies to reduce the production of hormones that cause aging.

Birth Control Pills - In 1965, the Supreme court struck down a law banning prescribing, selling, and using contraceptives in Griswold v. Connecticut. The court held that there is right to privacy "created by several fundamental constitutional guarantees." (That whole right to privacy thing would come up again...)

Check out that main Planned Parenthood link above if you have time. There's a lot of really great info there.