Presumption of Guilt

Two recent polls indicate that Americans’ support for the death penalty is on the decline. In fact, support is the lowest it’s been since 1972 when the U.S. Supreme Court struck down death penalty laws across the country in Furman v. Georgia. Now 61 percent support the death penalty (a drop of almost 20 percent from the mid-nineties) but when given an alternative of life without parole, only 48 percent stick with death.

I can’t help but wonder if Troy Davis changed some people’s minds. Davis’s case – the fact that the State of Georgia executed Davis despite serious questions about his innocence – highlights why I changed my mind about the death penalty.

When a person is accused of a crime, they are innocent until they are proven guilty, and to be convicted 12 jurors must believe in their guilt beyond any reasonable doubt. Once convicted, though, that presumption of innocence gets turned on its head: a convicted person is essentially guilty until proven innocent. Proving innocence is difficult in most cases, but it’s an understandable requirement. Without that finality, courts would be bogged down with requests to overturn or revisit or retry every decision.

But what happens when someone has pretty good proof that they could be innocent? Say witnesses change or contradict their story or insist their original testimony was coerced. Or new evidence is uncovered that suggests a different person committed the crime. Unless that evidence meets the high standard of proof, unless like District Court Judge William Moore said in Davis’s case, it can be shown “by clear and convincing evidence that no reasonable juror would have convicted him in the light of the new evidence,” the conviction stands.

This means that only some of the people convicted of crimes they didn’t commit will be released from prison, while many others will complete the entirety of their sentence. And although this is a really uncomfortable fact, it’s one that we all agree to, at least implicitly, to keep our justice system running.

But the thing I find unacceptably uncomfortable, and maybe a growing number of Americans do as well, is that the same standard is applied to death sentences. Cases, like Troy Davis’s, can develop rather large holes, but those holes aren’t quite enough to meet that high standard. And unless clemency is granted by a Governor who might have to face reelection, that sentence of death is going to stand.

What originally got me thinking about the death penalty wasn’t the morality or the cost or the racial and economic bias or even the growing worldwide disfavor of it, although the more I learned the more troubling it became. What got me thinking was the system that supposedly works to protect life doesn’t revisit those serious questions of innocence before it okays an execution. When life – not just liberty – is on the line, you’d hope those questions would be answered.

Still No Plan After A Decade of Legal Medical Marijuana

More voices have recently joined the ACLU of Nevada over the paradoxical nature of Nevada’s medical marijuana laws. Judge Donald Mosley recently dismissed a medical marijuana indictment and recognized Nevada medical marijuana laws as "confusing and difficult to understand." Defense attorney Robert Draskovich suggested the state better allocate its limited resources and not focus on re-criminalizing something that the legislature long ago attempted to regulate and make non-criminal. Medical marijuana cardholder Robert Weidenfeld also noted that it is virtually impossible for a legitimately registered patient to obtain the medicinal herb in order to treat chronic pain. Most recently, Las Vegas Weekly writer J. Patrick Coolican expressed similar dissatisfaction with the ambiguity of the current laws governing medical marijuana.

These voices echo what the ACLU of Nevada consistently said during the 2011 legislative session - the lack of a comprehensive plan to manufacture, distribute, and allow for the use of medical marijuana is alarming, especially since Cannabis (marijuana) was legalized for medical purposes in Nevada via a constitutional amendment over a decade ago. The 2013 session of the Nevada Legislature has a clear duty to clarify a means for medical patients to obtain their medicine and review the criteria by which the system must be implemented. And although the ACLU would not take a position on its taxation or the regulation on the quality of the herb, these two considerations may also be prime for the Legislature’s consideration.

During this last legislative session, small steps were taken toward initiating medical marijuana reform. Three independent bills were proposed - two of the bills died without receiving a hearing and the third failed to meet the final deadline - indicating the issue is drawing more attention and the need to address it is becoming more apparent. Unfortunately, a giant step back was also taken when the legislature passed the Governor’s budget, which redirected funds away from the medical marijuana program to other portions of the health and human services budget, leaving the medical marijuana program in the lurch.

The ACLU of Nevada continues to call for a reform to the Nevada medical marijuana laws and will keep our ears open as more voices join in. If you are a patient or caregiver who has been negatively affected by our medical marijuana laws, please file a complaint with us at www.aclunv.org/complaint.

What’s Left Out of the Celebration of the End of “Don’t Ask, Don’t Tell”

During the much-awaited, though somewhat anti-climactic, celebrations over the end of “Don’t Ask, Don’t Tell,” much of the policy’s history and details were lost and generally thought not worth remembering—precisely because the policy was now history.

But history teaches valuable lessons, and while the overall policy was grotesque, the devil was really in the details.

What almost all Americans knew as the “Don’t Ask, Don’t Tell” policy was really a “Don’t Ask, Don’t Tell, Don’t Pursue” policy that later was officially enshrined with the additional “Don’t Harass.” The “Don’t Ask” was mostly directed at commanding officers, and the “Don’t Tell” was directed at the closeted gay, lesbian, and bisexual members of the armed forces. But the “Don’t Pursue” was aimed at both commanding officers and others who would and could instigate investigations into a service member’s sexual orientation.

And, as the public and media and politicians generally forgot about the “Don’t Pursue” aspect of the policy, a phenomenon made all the easier by the fact that it was rare for any American to make or hear reference to “Don’t Pursue” (let alone the “Don’t Harass” that was added later), so, too, does it seem like the U.S. military also forgot that it was no longer allowed to “pursue.”

One doesn’t need to sketch out a narrative about how “pursue” was or was not defined, and how it was or was not executed regardless of the definition. The numbers tell the story. The number of discharges, which started at 617 in 1994 (the first full year that the policy was in effect), rose each year to 1,163 in 1998, dipped a bit, and then hit an all-time high of 1,273 in 2001--ironically the year that it became apparent that the United States might need to be picking and choosing who to retain, not who to discharge--based on the possibility of military action in one or more countries.

I suppose one can give the U.S. military some sort of credit for discharges declining almost continuously from 2001 (again, 1,273 that year) to 2010 (261 that year), but one wonders what the discharge numbers would have been had there not been two wars going on--and the U.S. military during that period still managed to discharge valuable specialists such as gay linguists fluent in Arabic! We should not forget that the original policy did include the “out” that the military could retain an openly GLBT person when discharging him or her “would not be in the best interest of the armed forces”; in other words, under “Don’t Ask, Don’t Tell, Don’t Pursue,” the military was essentially not required to discharge anyone.

One cannot blame the general American public for calling it the “Don’t Ask, Don’t Tell” policy; after all, few Americans are policy wonks, a decreasing percentage of the U.S. public has active service members or veterans in their immediate families, and it was rare to hear the entire “Don’t Ask, Don’t Tell, Don’t Pursue” phrasing anytime, anywhere. (Granted, this is not the law’s official name--the phrase was coined by the late military sociologist Charles Moskos—but essentially no one called the law by its official, legal name, and the nickname was more-or-less accurate, easy to say, and easy to remember.)

Parties outside the military—politicians and the news media, in particular—bear a great deal of blame for the “Don’t Pursue” component being lost. Use of the full popular name would have rhetorically reminded everyone what kind of policy it was supposed to be and that it was not as successful or fair in practice as it could and should have been.

The other major point, besides “Don’t Pursue,” that got lost over the years and hasn’t been much recalled this year, is that the entire “Don’t Ask, Don’t Tell, Don’t Pursue” policy was a grand, though not great, compromise. Poor President Bill Clinton thought it would be easier to have openly GLB service members in the U.S. military in 1993 than it had been for President Harry Truman to racially desegregate the U.S. military after World War II. Clinton dramatically underestimated the opposition that such a change would engender, and spent a great deal of political capital early in his presidency on this issue; soon enough, he just wanted the entire topic to just go away, and sheepishly signed on to “Don’t Ask, Don’t Tell, Don’t Pursue”—which he called an “honorable compromise.”

Though disappointed, some liberals and libertarians and moderate conservatives consoled themselves that “Don’t Ask, Don’t Tell, Don’t Pursue” was at least incrementally better than the previous policy, which was essentially no tolerance for any GLB service members except, maybe and temporarily during wartime. The truth was that the policy was no improvement, but merely a new perpetuation of the closet.

Thus, more clearly in hindsight (and to many of us obvious from the beginning), the “honorable compromise” was a mistake. There was no real improvement for the GLB community, because “Don’t Ask, Don’t Tell, Don’t Pursue” gave cover to anyone--whether liberal, centrist, conservative, or libertarian--who in 1993 and/or since didn’t want to revisit the issue of “gays in the military” any time soon, if at all. And like classrooms in double-wide trailers at public schools, and the federal telephone excise tax in place most of the time since 1898, what was supposedly a temporary measure started looking like it was going to be permanent. In the last few days, weeks, and months, observers have made comments such as, “Who would have guessed this would have stayed in effect for 18 years?” But any student of the history of government--particularly when a government must deal with a controversial social or cultural issue--could tell you that temporary measures (compromise or not, but especially compromises) can end up being in place a long, long time. (See, for example, Plessy v. Ferguson, a compromise of sorts that lasted 58 years.)

The American Civil Liberties Union (both nationally and its state affiliates, such as Nevada) sometimes is criticized for taking positions on issues that some others refer to as “absolute” or “extreme,” but that is because all of Americans’ constitutional rights should be maximized, and compromises should be allowed or made by courts only when necessary. (Nationally, the ACLU opposed “Don’t Ask, Don’t Tell, Don’t Pursue” from the beginning.) Asking GLB military personnel to lie about their sexual orientation arguably was never militarily necessary—a fact made increasingly clear by at least 42 other countries whose militaries allowed openly GLB service members before the United States got around to it. And not having passed the dishonorable compromise known as “Don’t Ask, Don’t Tell, Don’t Pursue” probably would have gotten us to today sooner, not later.

Happy Birthday, U.S. Constitution!

224 years ago, on September 17th, 1787, the U.S. Constitution was signed in Philadelphia. Ratification by the states came later, but this date marks the birth of a document that was, and continues to be, the bedrock of our legal and political society. And a birthday it truly is, for the Constitution has continued to grow and evolve through amendments and court interpretations over the years—a living document that is as strong and relevant in 2011 as it was in the 18th century.

Nonetheless, there is frequent discussion about the Founding Fathers and what they intended when they put their signatures on that piece of paper so long ago. Would they have supported the Equal Rights Amendment? What about a Federal Marriage Amendment? Did they envision the United States as a Christian nation or a secular system? Would they agree that the Electoral College doesn’t work anymore? People will vary in their views on these topics, and the ACLU has strong positions on constitutional interpretation—positions for which we have been successful advocates for nearly a century. The debates continue, though, as they must in a society that values the free exchange of ideas.

I have to wonder what the original signatories of the Constitution would think about the system that they created, 224 years after the fact. We have made strides that were likely inconceivable in 1787—minority groups continue their march toward greater participation in the American experience, and we became the world’s strongest and most successful democratic society. At the same time, our rights and liberties continue to be threatened, sometimes from within our own system. Fear, paranoia, and apathy have bred laws and policies that are blatantly opposed to the principles of personal freedom, due process, and equal protection. So, on the whole, would those founders cheer or weep for our country and its ongoing, laborious evolution? Perhaps they would do a bit of both.

In the end, though, we cannot spend our time chasing ghosts. The Constitution does not belong to those who wrote it. It is our inheritance as a nation, to be guarded and passed down to future generations. The only thing we can do as temporary custodians of this remarkable treasure is look for the underlying principles of fairness and equality in the Constitution’s words and align those values with our contemporary reality. That task is our mission—and our honor—at the ACLU.

And so, each year at this time we observe Constitution Day—not with a day off from work, but with educational programs in public schools and universities, and perhaps a bit of reflection by those who cherish the ideas written down that autumn two centuries ago. If nothing else, take a moment to read the passage below, understanding that these words belong to you. Remember them, and, more importantly, live them.

We the People of the United States of America, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Preamble to the United States Constitution

Reflecting on 9/11 and Reclaiming Our Liberties

There are certain events throughout our lives that change us forever. The birth of a child, the death of a loved one or falling in love can all shape who we are. There are also events in history that change who we are as human beings and as Americans. On September 11, 2001, the American psyche, as well as my own, was changed forever. I was a junior in high school and I remember being told that planes had struck the World Trade Center. I did not believe it. I thought that some type of small single engine plane had collided with the building. When my Chemistry teacher turned on the television, I realized that the world had just changed forever.

Our great beacon of democracy would be tested and the democratic systems that make our nation so great would be diminished as Americans traded freedom for security in an effort to prevent further attacks. My mother had educated me about politics and democracy from a young age, so on September 11, 2001 as I watched the footage of the planes hitting the towers over and over, I knew in my heart that these attacks would be used for years to come as a means to reduce freedom in the name of safety.

The Bush Administration used the legitimate fear people had to push through a massive new state security apparatus that gathered intelligence on thousands of Americans guilty of no crime, usually because of political affiliation or other constitutionally protected activities. Following 9/11, our government made a conscious choice to declare a sort of existential war on terror rather than a war on a physical group such as Al-Qaeda or a person such as Osama Bin Laden. When can we win a war on terror? Now we are kept in a constant state of emergency in which we are told that the terrorists can strike at any time and any place. We are now in a perpetual state of war that will carry on long after the last American soldiers leave Afghanistan and Iraq.

Indefinite military detention has become a permanent fixture in the war on terror. Since 9/11, the government has labeled people as terrorists and held them indefinitely. Only after years of challenges from groups like the ACLU and review in the courts was it found that the government’s evidence was exaggerated, wrong, or non-existent. Much of the way in which people were detained overseas was in and of itself dubious. Accusations made by a former aide to Colin Powell reveal that many detainees captured in Afghanistan were picked up by Afghani and Pakistani warlords for bounties of $5,000 with no evidence of what part, if any, these detainees played in the insurgency and terrorist groups. The United States is one of the greatest democracies in human history, yet we are now left with the dubious distinction of being a democratic nation that maintains a military detention center in Guantanamo Bay that continues to hold people without trial, without charges, and without reason. This has tarnished our image at home and abroad.

When America went to war with Iraq in 2003, I joined millions of people around the world in protesting an action that turned out to be based on misinformation. The post-9/11 security apparatus that was promised to be used only against terrorists was also used against my fellow war protestors across the country as a means to quell political dissent protected in the Constitution of the United States. In a report released by the ACLU in 2010 called, “Policing Free Speech,” there are numerous instances in which Military Intelligence and agencies like the FBI spied on anti-war protestors and activists involved in other causes such as animal and environmental groups.

The most horrific post-9/11 practice employed by our government was and is, without a doubt, torture. Hundreds of detainees in Guantanamo Bay and abroad were subjected to torturous methods such as water-boarding, isolation, stress positions and sexual humiliation. Our government refuses to prosecute many terrorism suspects in civilian courts because torture was used to extract information. This has severely damaged our legal system for the foreseeable future. Even before the United States had captured any terrorism suspects, a conspiracy to undermine our longstanding ban against torture was being fostered at the highest levels of our government. The torture advocates from the Bush Administration still contend that “enhanced interrogation techniques,” are humane and gave us immense amounts of intelligence but fail to acknowledge the fact that these inhumane practices have undermined everything America stands for.

It has been ten years since that fateful day that changed America forever. In those ten years, some of the cornerstones of American democracy have been chipped away and replaced by a massive permanent security apparatus that has eroded elements of American democracy that make us so unique. The rule of law, freedom of speech, freedom of the press and the right against illegal search and seizure, cruel and unusual punishment and the right to a jury trial have all been weakened by the fear of another terrorist attack. Unfortunately, the Obama Administration has stated that it will not prosecute high ranking Bush Administration officials who blatantly violated the constitution and circumvented the rule of law. President Obama insists on “looking forward,” but there can be no closure without justice. The Obama Administration continues to use drone warfare to target suspected terrorists and American citizens accused of terrorism. For all of those people who lost their lives on 9/11, it is our duty to keep America safe and free.

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