When “Actual Innocence” Can’t Get You Out of Jail

I wrote awhile back about Kevin Strickland, a Black man wrongly convicted of murder 40 years ago who remains in prison in Missouri because the governor won’t act and the local prosecutors, who acknowledge that Strickland was wrongly convicted, have no legal means to release him. In Missouri they can’t just go to a court and ask a judge to void the conviction.

If that sounds crazy to you, it sounds crazy to me too. It sounds crazy to a lot of people.

There are two other Black men in prison here whose convictions have been acknowledged to be unjust. Their names are Lamar Johnson and Christopher Dunn. Here is a recent PBS News Hour report on Lamar Johnson. Johnson’s case was investigated by St. Louis circuit attorney Kimberly Gardner . She discovered prosecutorial misconduct up the wazoo. This is from the PBS report:

Gardner’s investigation turned up even more proof of Johnson’s innocence. The prosecution’s eyewitness recanted, admitting he’d only identified Johnson because police told him Johnson was guilty.

And her team found records showing prosecutors paid that witness more than $4,000 for housing and expenses, information that was never disclosed to the defense.

So, you have no evidence that he committed the crime. You have the confession of two other people that they committed the crime and that he did not. You have raised pretty good questions about whether or not the trial was fair. People will ask, then why is he in prison?

And the answer seems to be that Missouri simply never created a process by which wrongly convicted people can be exonerated and released. One must be pardoned by a governor, and Gov. Mike Parson appears not to see why innocent Black men ought to be released from jail. As Parson said of Strickland, he was convicted “by a jury of his peers.” So what if the prosecutors manipulated the photo lineup, bribed another prisoner to snitch, and withheld exculpatory evidence from the defense and jury? So what if other people have confessed to the crimes? What if the prosecutors’ entire case has been found to be lies? Parson doesn’t see the problem. 

And it probably doesn’t help Mr. Johnson that the Republicans in Jefferson City hate Kimberly Gardner with a white-hot passion. Among other things, they blame her, and not their stupid NRA-approved gun un-regulations, for rampant gun violence in St. Louis. They also blame her for being a Black woman. She also was instrumental in prying Gov. Eric Greitens out of office, although the Republicans in Jefferson City don’t like Greitens, either, so I don’t know why they care about that.

This March the Missouri Supreme Court denied an appeal from Mr. Johnson, who was convicted of murder in 1995.

The state’s highest court upheld that decision this week on procedural grounds, saying that Gardner lacked the ability under state law to file a motion for a new trial so long after Johnson’s original conviction. All seven of the court’s justices agreed with the conclusion, which did not address any of Johnson’s innocence claims.

There’s a statute of limitations on innocence? It gets dumber. I have learned that according to current Missouri case law, “actual innocence” is not a sufficient reason to release a prisoner found to have been wrongly convicted unless the prisoner is on death row.

I’ll repeat that. “Actual innocence” is not a sufficient reason to release a prisoner found to be innocent unless the prisoner is on death row.

Not being a lawyer I may be misinterpreting things, but here is the relevant case cited in the Post-Dispatch. Missouri Court of Appeals, Western District. IN RE: Rodney L. Lincoln, Petitioner, v. Jay Cassady, Superintendent, Jefferson City Correctional Center, Respondent. WD 79854 Decided: October 11, 2016

In this case, Rodney Lincoln had filed a petition for writ of habeas corpus requesting the vacation of his 1983 convictions of two counts of first-degree assault and of manslaughter. Lincoln spent 36 years in prison. You can read the background of his case here.  By six years or so after his conviction the evidence had fallen apart, but the Midwest Innocence Project kept taking cases to court to get his conviction voided. And in 2016, the Missouri Court of Appeals, Western District, declared —

Because the Missouri Supreme Court has not recognized a freestanding claim of actual innocence in cases where the death penalty has not been imposed, we are not at liberty to expand Missouri habeas jurisprudence to permit consideration of the claim in this case. Accordingly, Relator’s habeas petition is denied.

So, if you’re not on death row, you can’t get your wrongful conviction overturned? In 2018 Lincoln, who is White, was set free by Gov. Eric Greitens. One wonders if he’d still be in jail if he were Black. But Lincoln received no compensation whatsoever from the state for the 36 years he was kept imprisoned.

This state makes me crazy.

Lamar Johnson

The GOP’s Happy Imaginary World

A long, long time ago I decided that the biggest difference between the two major parties was their style of addressing problems. Democrats have long tended to identify a problem and then think up policies to address it. The policies may or may not work. They may fall way short of what’s needed. They may cost a lot of money. But as a rule Democrats will admit to a problem when it arises and think up something to do about it.

Republicans, on the other hand, most of the time refuse to admit there is a problem, especially if it’s one that can’t be solved with tax cuts and privatization. The classic example of this involves health care. By the late 1980s a lot of Democrats were admitting we needed health care reform. Mike Dukakis made health care reform a big part of his presidential campaign in 1988. But the response to this from Republicans was “we have the best health care in the world” and there was absolutely no reason to lift a finger to reform it.

After all these years the Republicans still don’t want to face the realities of the corrupted, tangled mess that is the U.S. overexpensive and inefficient healthcare system, although most will admit that maybe something needs to be done to bring costs down. But all the “reforms” they can think of basically amount to meaningless tweaks. And like Donald Trump’s famous health care plan that is perpetually two weeks’ away from being ready to unveil, Republicans for at least the past decade or so have claimed to have comprehensive plans for health care in the works that never materialize. Or, if they do materialize, they are very, very stupid and don’t survive being exposed to daylight. See, for example, The Conservative Plan: Don’t Get Sick from September 2009.

The exception to the “What problem?” rule happens when a problem, whether real or imaginary, can be politicized to bash Democrats. Thus the Wall Street Journal even today is giving a lot of space to a story about Hunter Biden’s laptop.

In GOP world, vaccine mandates that don’t exist are a crisis, but not the pandemic itself. But if the pandemic is a problem, then the most important thing is not to slow its spread but to find out who can be blamed for it. There is nothing about the pandemic itself that provides an obvious argument for tax cuts or for privatizing government services, so Republicans on the whole don’t see it as an issue worth addressing.

But since Joe Biden became president and Congress gained a slim Democratic majority, Republicans have put great effort into demonizing everything Democrats are trying to do to save lives. Government overreach! they scream, even as the Delta variant spreads. As I wrote recently, many GOP governors have put more effort into “protecting” their citizens from having to wear masks or get vaccinated than in protectiong their citizens from the bleeping virus. So here is a map showing where covid cases are increasing at the moment:

source: https://covidactnow.org/?s=2025944

If you’re wondering, Vermont has a 66 percent full vaccination rate, and Massachusetts has a 62.5 percent full vaccination rate. If only we could get to that rate everywhere … It’s just over 50 percent in the US Commonwealth of the Northern Mariana Islands (CNMI), but maybe its isolation has protected it. Sounds like a nice place to visit, though.

This week rightie world went ballistic about government overreach! after President Biden said something about people going door to door to encourage vaccination. Here is that remark, in context.

Because here’s the deal: We are continuing to wind down the mass vaccination sites that did so much in the spring to rapidly vaccinate those eager to get their first shot — and their second shot, for that matter, if they needed a second.

Now we need to go to community by community, neighborhood by neighborhood, and oftentimes, door to door — literally knocking on doors — to get help to the remaining people protected from the virus.

Look, equity, equality — it remains at the heart of our responsibility of ensuring that communities that are the hardest hit by the virus have the information and the access to get vaccinated.

So, as we shift from these centralized mass — mass vaccination sites, where we were doing thousands of people a day, we’re going to put even more emphasis on getting vaccinated in your community, close to home, conveniently at a location you’re already familiar with.

Right on cue, Marjorie Taylor Greene compared this effort to the Nazis.

“Biden pushing a vaccine that is NOT FDA approved shows covid is a political tool used to control people,” Greene tweeted Tuesday afternoon. “People have a choice, they don’t need your medical brown shirts showing up at their door ordering vaccinations. You can’t force people to be part of the human experiment….”

To Greene, “fascism” is defined as “anything a Democrat does.” See also David Graham, “The Rise of Anti-History,” at The Atlantic.

For Greene and others in the Trumpist wing of the Republican Party, anti-history has become a shibboleth. They drop historical references and facts into political debates, but without regard to context, logic, or proportionality. Their villains include Adolf Hitler, but also Mao Zedong and Joseph McCarthy; the Holocaust was bad, but also, Jewish people control the weather. The pose is more than the simple historical illiteracy that’s endemic among American politicians. In this GOP faction, members are willfully ignorant of history, which they view in purely instrumental terms, as a bludgeon to wield even as they do not bother to understand it.

(It might be best to understand Greene as a kind of walking Rorschach test. What she bleats out of her mouth isn’t important and doesn’t make sense, anyway. But whatever you make of what she says reveals something about you.)

But it gets better. At CPAC (yes, they’re holding CPAC again. I think they’re making it a monthly event) Rep. Madison Cawthorn (R-NC) warned his fellow wingnuts that Biden’s door-to-door effort is designed to take away their Bibles. And maybe their guns, too. The la-la is strong with this guy.

If it weren’t for the fact that a big, unvaccinated population increases the likelihood of a new variant developing that can’t be stopped with vaccines, I’d say let ’em be crazy. By this time next year, there will be fewer of them. But people who are not-wingnuts will be endangered, also. Maybe the way to reach the wackjobs is to declare that vaccines are available only to registered Democrats. Then they’ll want them.

See also: Delta variant spills out of an incubator that is also a Midwest tourist hotspot by Josh Wingrove, Bloomberg.

When One Side’s Terrorist Is Another Side’s Martyr

Can we talk big-time hypocrisy? The Right has gifted martyrdom to the late Ashli Babbitt, the woman shot and killed while rioting in the Capitol January 6. These past six months they have called for the name of the law enforcement officer who shot her, but the officer was cleared of wrongdoing, and his name was not released.

Now parts of rightie media have named a name, based on their analysis of the video of the shooting. I am not going to repeat the name here, because the wider his name is known the more peril he is in. And I have no opinion as to whether the man named is the real shooter. I do have an opinion that the Justice Department was right to clear him of wrongdoing.

To review, on January 6 Ms. Babbitt was in the forefront of a port of the mob who came up against the barricaded door of the Speaker’s Lobby, a space outside the main entrance of the House chamber. Members of Congress and their staffs were escaping through the lobby at the time. Rioters shattered the glass on the doors. In the videos, you can see a law enforcement officer standing behind the doors with a gun drawn. Babbitt, with the help of other rioters, was squeezing herself through an open space to get into the lobby. You can see her in this photo; she’s wearing the striped backpack.

I am told that in some videos, security staff can be heard shouting “Get back! Get down!” I have not watched every video myself to verify that, but in this one you can hear rioters yell, “he’s got a gun.” One officer is plainly visible pointing his handgun. And as Babbitt’s head came through the window, he fired. She was struck in the neck and declared dead at the hospital.

The righties make much of the fact that Babbitt was not armed. But the security staff at that time had no way to know who was armed. And in any event, by then police all over the building were being routed and beaten up by the overwhelming force of the mob. Armed or not armed, the rioters were a clear danger to the legislators still a few feet away, either evacuating or still in the House chamber. This photo taken from within the House chamber suggests that if those doors had been broken through, more people would have been shot.

It is regretful that anyone died in that mob. But how deluded do you have to be to believe that Babbitt died “for no reason“?

The Department of Justice said of the officer who shot Babbitt:

The focus of the criminal investigation was to determine whether federal prosecutors could prove that the officer violated any federal laws, concentrating on the possible application of 18 U.S.C. § 242, a federal criminal civil rights statute. In order to establish a violation of this statute, prosecutors must prove, beyond a reasonable doubt, that the officer acted willfully to deprive Ms. Babbitt of a right protected by the Constitution or other law, here the Fourth Amendment right not to be subjected to an unreasonable seizure. Prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so “willfully,” which the Supreme Court has interpreted to mean that the officer acted with a bad purpose to disregard the law. As this requirement has been interpreted by the courts, evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent required under Section 242.

The investigation revealed no evidence to establish beyond a reasonable doubt that the officer willfully committed a violation of 18 U.S.C. § 242. Specifically, the investigation revealed no evidence to establish that, at the time the officer fired a single shot at Ms. Babbitt, the officer did not reasonably believe that it was necessary to do so in self-defense or in defense of the Members of Congress and others evacuating the House Chamber. Acknowledging the tragic loss of life and offering condolences to Ms. Babbitt’s family, the U.S. Attorney’s Office and U.S. Department of Justice have therefore closed the investigation into this matter.

I don’t know the status of the evacuation at the exact moment of the shooting, but it’s my understanding that the mob could well have gotten their hands on members of Congress if it had gotten through that door. Lawmakers Were Feet and Seconds Away From Confrontation With the Mob in the Capitol, according to a Wall Street Journal headline. And now that the mob has the name of an officer, he and his family will need to be moved to a very safe, undisclosed location. So far, none of the published articles naming his name have given his address or the names of family members, but that’s only a matter of time. Somewhere, no doubt, he is already doxxed.

It’s my understanding that the shot that killed Ashli Babbitt was the only gunshot fired in the Capitol that day. There was, of course, bear spray and tasers and many blunt objects in the hands of the mob. I’ve waded into some rightie sites today, and according to rightie lore, all of the rioters who died that day were killed by Capitol security. Beside Babbit, these are:

Kevin D. Greeson, 55, of Athens, Alabama. According to news reports, Greeson was standing with a group of Trump loyalists on the west side of the Capitol when he suffered a heart attack and fell to the sidewalk. He was talking on the phone with his wife at the time. According to righties, he had a heart attack because he was shot in the chest with rubber bullets.

Rosanne Boyland, 34, of Kennesaw, Georgia. Ms. Boyland was trampled by her fellow rioters, although the official cause of death was “acute amphetamine intoxication.” Even so, the New York Times “Day of Rage” video shows rioters trampling over her. According to rightie lore, the crowd ran because it was being fired on. No, it wasn’t. The crowd was not in retreat but in advance. No shots are heard. No one in that part of the crowd was shot.

The point is that a characteristic of Trump supporters is blind tribal loyalty and an inability to take personal responsibility for anythng.

Speaking of deaths, on July 6 Chris Hayes made the point that the House would have been evacuated sooner except that Rep. Paul Gosar was taking his time objecting to the ballots of his own state. If the House chamber had evacuated sooner, Ashli Babbitt might still be alive. Chris Hayes stopped short of accusing Gosar of coordinating with the mob. Hmm.

And let us not forget that abut 140 officers were injured in the defense of the Capitol. Many injuries were serious — broken ribs, smashed vertebrae, head injuries. Officer Brian Sicknick died the next day, perhaps from unrelated causes, and two other officers committed suicide in the days after the riot.

But we must remember that the mob is still out there, and still dangerous, and they think they have righteousness on their side.

See also: Philip Bump, The death of Ashli Babbitt offers the purest distillation of Donald Trump’s view of justice.

The Future of Condominiums

Bodies are still being found in the rubble of the Champlain Towers condominiums. Those who escaped are having a rough time. Many ran out of the towers with nothing but the pajamas they were wearing. They’ve lost their homes and everything in them. Neighbors and charities are stepping up, but the newly homeless are left wondering if they still have to pay off mortgages (surely  not!). They are getting help replacing driver’s licenses and getting their utility bills stopped.

I confess I’d never given much thought to the issue of building upkeep for condominiums. There’s a monthly association fee, and out of that the common areas of the building are maintained, right? The concept of condominiums dates to the 1950s, but they didn’t really take off until the 1980s. I believe most coop apartments in the New York City area are converted apartment buildings, many built before World War II, but most (not all) condos are new construction. And now the first condo buildings are aging. The Champlain Towers complex was built in 1981, for example.

There are still stories coming out about flawed construction and missed warnings, but the most obvious problem was that the building required $15 million in repairs, and the complex’s owner-residents were balking at paying the assessment. Possibly some of them couldn’t afford the assessment. (That was my issue with the coop apartment I owned for a time. In ten years the management-maintenance fees went from $500 a month to over $1,200 a month, on top of a mortgage, which was not what I signed up for.) If the building were owned by a corporation that could draw on bigger resources for repairs, perhaps it still would be standing.

I’m thinking also about Brooklyn, NY. In the year I lived in the temple the Brooklyn skyline was all high-rise apartment buildings under construction, mostly luxury condos. One downtown condo tower is 720 feet tall, which is hard to miss. Another, 680 feet tall, has a swimming pool on the roof. That makes it the highest swimming pool in the western hemisphere. I have no idea what individual units cost, and the websites don’t tell you, but I’m guessing some number in seven figures.

And the issue here is twofold. One, there is a desperate need for decent affordable housing in New York City. I’ve known people in white-collar jobs who live in little rooms with a “kitchen” consisting of a microwave and a coffee pot, because rental of a real apartment would eat most of their paychecks. But the builders want to build luxury places, often for extremely wealthy people who have other homes, because there’s more profit in it. Yay, capitalism. (I have little hope that the new Democratic nominee for mayor is going to do anything about housing. But we’ll see.)

And I have to say that if somebody gave me several million dollars to afford an apartment in one of those buildings, and if they could guarantee that the building will never deteriorate or suffer power failures or the swimming pool on the roof won’t leak and there will be no fires, I’d take it. But reality is that if I’m several stories up and the elevators break down I’d be stuck. And global warming, rising seas, bigger and badder hurricanes, are going to challenge those buildings in the years to come. It wouldn’t surprise me if in 40 years the rich people will have cleared out, and any towers still standing will have been taken over by squatters.

And, of course, affordable housing isn’t just a New York City problem.

And the other problem is whether this condo-coop housing model is really what we need for the long haul. If you live in a city there have to be apartments, although maybe the increase in remote jobs and telecommuting will relieve some of the pressure to pack large numbers of people into urban areas. Whatever the solution, it’s madness to assume the “free market” will provide it. We need government to step in, somehow.

See also Condo Buildings Are at Risk. So Is All Real Estate at The Atlantic.

Update: I just found this. This is from January 2020, pre-covid.

In Manhattan, the homeless shelters are full, and the luxury skyscrapers are vacant.

Such is the tale of two cities within America’s largest metro. Even as 80,000 people sleep in New York City’s shelters or on its streets, Manhattan residents have watched skinny condominium skyscrapers rise across the island. These colossal stalagmites initially transformed not only the city’s skyline but also the real-estate market for new homes. From 2011 to 2019, the average price of a newly listed condo in New York soared from $1.15 million to $3.77 million.

But the bust is upon us. Today, nearly half of the Manhattan luxury-condo units that have come onto the market in the past five years are still unsold, according to The New York Times.

There is no reason to imagine that’s not true of the new condo towers in Brooklyn, also. Most of them are only a twenty-minute or less subway ride to Wall Street. But most of these luxury condos that are all over the place were built with foreign investors and corporations in mind, not New Yorkers.

From any rational perspective, what New York needs isn’t glistening three-bedroom units, but more simple one- and two-bedroom apartments for New York’s many singlesroommates, and small families. Mayor Bill De Blasio made affordable housing a centerpiece of his administration. But progress here has been stalled by onerous zoning regulations, limited federal subsidies, construction delays, and blocked pro-tenant bills.

The cost of housing has made New York City nearly unlivable for all but the very wealthy and long-time residents who bought their homes years ago or live in rent controlled apartments. The article says that at the time the city was losing 300 residents a day.

At the site of the collapsed Champlain Towers

GOP Governors Beg Residents to Get Vaccinated

Call it Covid Karma. Republican governors of several states who have pooh-poohed the pandemic and refused to address it aggressively are now seeing their states turn into vast petri dishes for cultivating the Delta Variant.

GOP governors implored their residents on Sunday to get vaccinated against the coronavirus, as polling shows that vaccine hesitancy has been driven by Republicans and as the virus’s new, more contagious delta variant has caused recent upticks in covid-19 cases in areas with low vaccination rates.

Here is Missouri, the utterly worthless governor Mike Parson has all along refused to issue any sort of mandate to wear masks in public. For a short time last spring there were limits on the number of people who could be inside a business, but that didn’t last long. Througout the pandemic there has been tension between the cities, Kansas City and St. Louis, and the Parson administration over Covid restrictions. Our excessively worthless attorney general Eric Schmitt at one point filed a lawsuit against St. Louis County for its “overreach” on mask mandates and limits on social gatherings, all of which followed CDC guidelines. On June 15 Parson himself signed a law that put limits on the ability of county health agencies to enforce any kind of pandemic restriction unless the governor has declared a state of emergency. He also has banned any publicly funded entity from using vaccine passports or requiring proof of vaccination.

But now I see the state has asked the White House for help with the Delta variant.

The state reached out to the Biden Administration only hours after the White House announced that it was creating “surge response teams” to help states contain outbreaks fueled by the new variant and low inoculation rates.

In the past two weeks, the daily number of reported cases in Missouri has more than doubled, and hospitalizations have increased 20 percent, though the figures remain a fraction of their November peak, according to a New York Times database.

The spike has been especially pronounced in the southwestern part of the state, which is home to tourist destinations like Branson and the Lake of the Ozarks, and where several hospitals recently had to move about a dozen Covid patients to other facilities because of staffing and capacity issues. Centers for Disease Control and Prevention estimates based on genomic testing put the prevalence of Delta cases in the state at nearly 30 percent.

The Branson/Lake of the Ozarks area is some distance from where I’m living. It’s an area set up for tourism because it’s not much good for anything else. It’s some distance from cities and you can’t farm it, but you can book, um, entertainment. It’s like redneck Las Vegas, but with no gambling. And as I wrote last year, Branson closed briefly but, with the governor’s encouragement, reopened in May 2020 and stayed open.

And now it’s a Delta variant hotspot. Big surprise.

At the New York Times, Giovanni Russonello writes that Republican governors all along have been more concerned about “enshrining the right to refuse a vaccine” than in public safety. In some cases, governors have just been plain ridiculous; for example, Gov. DeSantis of Florida won’t let the cruise industry require proof of vaccinations for passengers. The cruise industry, not unreasonably, believes that will make it harder to get passengers back on their boats. Ironically, in carrying out his opposition to government interference in business, DeSantis is interfering in business.

So we’ve got parts of the country — mostly Republican, mostly rural — lagging way behind in vaccination rates, and it’s expected there will be dense outbreaks of the Delta variant in those parts in the weeks and months to come. Thanks, wingnuts. We could be pretty much done with the bleeping pandemic were it not for you.

Systemic Racism on Steroids

Chris Hayes blasted the Supreme Court last night for what it has done to voting rights, and I can’t find the video clip. The transcript is a bit long to post, but here it is, and you can start a few paragraphs from the top where it says “HAYES: What problem are they solving for?” Here’s just a bit:

I mean, the Voting Rights Act. It`s what made American democracy as we know it, American democracy, it overcame totalitarian apartheid rule in the south. It`s part of our national civic canon, the heroes of the Civil Rights Movement who fought and died for it.

They are celebrated to this day. They shed their own blood to make America a true democracy for all. People like Lamar Smith who organized black Mississippians devote and then was shot dead by a white man in broad daylight on the courthouse lawn in 1955. And people like Medgar Evers, the NAACP is first field Secretary in Mississippi who was shot and killed, murdered in his own home in 1963. And people like John Lewis who led a group marching across the Edmund Pettus Bridge in Selma, Alabama in 1965, and was brutally beaten with inches of his life by state troopers.

I mean, you can`t be against the Voting Rights Act. What, you`re going to be on the side of the state troopers? You`re going to be on the side of those with dogs and fire hoses? You can`t be against the voting rights act without desecrated the martyrs who fought and died for it and the religion that built up around it unless, unless you`re John Roberts, the conservative on elected Chief Justice Supreme Court. He doesn`t have to have any voters vote for him, right, lifetime appointment.

Selma, 1965

So what’s the difference between Chief Justice Roberts and his crew and the likes of Sheriff Jim Clark? A cloak of respectability, I suppose. A very thin, flimsy cloak.

See The Supreme Court showcased its ‘textualist’ double standard on voting rights by Nicholas Stephanopoulos of Harvard Law School.

Today’s conservative judges pride themselves on being textualists. When interpreting a statute, they always start with the law’s text. Unless the law is ambiguous, they end with the text, too. As Justice Samuel A. Alito Jr. put it just last year, the courts’ focus must never waver from what a statute’s “words were understood to mean at the time of enactment.” Any other approach, even one that “sails under a textualist flag,” Alito lectured, is “like a pirate ship” — inappropriate and illegitimate.

So it was a shock to see the Supreme Court, in an opinion authored by none other than Alito, stacking one extra-textual constraint after another onto Section 2 of the Voting Rights Act. That provision prohibits any “standard, practice, or procedure” that makes it disproportionately harder for minority citizens to vote. In that situation, voting isn’t “equally open” to citizens of all races, and minority citizens “have less opportunity” to vote.
But Alito, and the five conservative justices who joined his opinion in Brnovich v. Democratic National Committee, were unwilling to heed this clear textual command. They invented several limits that will make it harder for plaintiffs to win future Section 2 cases — and that appear nowhere in Section 2’s language.

Last October I wrote a post called A Tyranny of the Dead that called originalism or textualism or whatever you want to name it a crock. “The originalists may think they are not making decisions based on their personal values, but of course they do,” I wrote.  “They just lack the self-awareness to recognize their own biases as biases.” But I take that back. They know good and well what they are doing.

Paul Waldman, The Supreme Court’s new ruling confirms it’s the enemy of democracy.

The partisan commitment of this court is so clear that in oral arguments, the lawyer for the Arizona GOP comfortably declared that the party has standing to support the law throwing out ballots cast at the wrong precinct because counting such votes “puts us at a competitive disadvantage relative to Democrats.” He knew who he was talking to.

The big picture here is that the court’s conservatives operate according to the “heads we win, tails you lose” approach to voting rights, in which with only the occasional exception, the best predictor of how a voting rights case will turn out is which side the Republican Party is taking.

They are nothing but party hacks. If it’s ever possible that we can get a big enough not-stupid majority in Congress before democracy is completely destroyed, court reform has to be high on the to-do list.

The Federalist Society judges — (clockwise from upper left) Samuel Alito, Clarence Thomas, Brett Kavanaugh, John Roberts, Neil Gorsuch, and Amy Coney Barrett.

Is the U.S. Military for Hire?

One of the weirder news stories today tells us that a guy who became a billionaire selling junk auto parts is paying South Dakota to send National Guard to the Texas border. Seriously.

Josh Marshall:

Josh Kovensky managed to get on the phone with Willis Johnson, the auto-salvage billionaire who is paying for the South Dakota state national guard – yes, a state that almost borders Canada – to go to the border with Mexico to patrol the situation.

On the one hand, we don’t want GOP megadonors going full warlord and renting state militias for this kind of stuff. On the other hand I think another just as likely scenario, quite possibly more likely though no less worrisome, is this. Kristi Noem’s political advisors said, hey we need to get in on this for the 2024 primaries. All the big 2024 contenders who run a state government are sending personnel to the border for these kinds of cosplay adventures. But South Dakota is a small state – budget and personnel-wise. And that created a budgetary headache. So they called up one of her donors to make that problem go away.

One might ask, as Steve M did, is this legal? I don’t know that it’s specifically illegal. It appears there is no precedent for somebody paying a state governor for a National Guard deployment, especially a deployment in another state.

Gov. Kristi Noem is sending 50 troops to support some kind of border protection theater being run by Texas Gov. Greg Abbott. Abbott, working as hard as he can to use his border with Mexico as a political asset,  asked for other states to send  Guard to patrol the border rather than rely on the Border Patrol. Putting aside for now whether Abbott is usurping the authority of the federal government, I believe there is precedent for the governor of one state to send Guard to another state at that governor’s request. But the fact that the deployment is being underwritten by a private citizen is just … weird. It seems wrong.

And while the National Guard, when not federalized, is under the command of state governors, they are also part of the Department of Defense.  And a wealthy Trump supporter is paying for them to pull some kind of political stunt. At the moment, it isn’t clear where they will be deployed or what their mission will be, which suggests they aren’t needed all that much. But is this something states should be doing at all? Where does the Border Patrol come in? Who will these troops report to?

Further, the exact amount of the donation, and exactly what’s being done with the money, or what conditions were made for its use, are being kept hidden for “security” purposes. Right.

Paul Waldman is calling this, um, thing part of the GOP’s new rebellion against federal authority.

Imagine you’re a member of the National Guard, and your commanding officer informs you that you’re being activated for duty. New orders from Washington? A natural disaster? Nope. It seems a billionaire from another state gave your governor a bunch of money so she could send you and a few dozen of your colleagues to Texas to do border enforcement, something you’re not trained for.

While the details are still coming into focus, that’s essentially what is happening in South Dakota: Republican Gov. Kristi Noem, who has her eye on the White House in 2024, is taking money from the foundation of Tennessee auto auction magnate Willis Johnson to deploy her Guard troops to Texas because she thinks the federal government isn’t doing its job. …

… Noem is essentially saying that she and other Republican governors can usurp the federal government’s responsibility over the border — and not only that, they can have conservative megadonors fund the operation.

Border security is definitely a federal responsibility, part of U.S. Customs and Border Protection within the Department of Homeland Security. State law enforcement does work in cooperation with federal enforcement, but I doubt state law enforcement engages in its own border enforcement actions and policies independent of the feds. That would be chaotic.

IMO the Department of Defense ought to pull the plug on this before other states come up with creative political uses for their Guard.

South Dakota National Guard Soldiers from the 153rd Engineer Battalion of Huron greet Gov. Kristi Noem at Barnes Canyon Camp during Golden Coyote training exercise in Custer State Park, S.D., June 14, 2019. Stars & Stripes

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I don’t know if this is available to non-subscribers, but if you can watch it, please do watch this video at the New York Times showing the January 6 insurrection/riot in detail. “The Times’s Visual Investigations team spent several months reviewing thousands of videos, many filmed by the rioters themselves and since deleted from social media. We filed motions to unseal police body-camera footage, scoured law enforcement radio communications, and synchronized and mapped the visual evidence,” it says. Most of the video footage was taken by rioters. From this you can get a sense of what was happening at the same time in various parts of the building, with diagrams showing exactly what part of the building you are seeing. It’s also pretty graphically violent.

Life, the Nation, the Planet: What’re They Worth to Ya?

If you’ve been following the unfolding news about the collapsed Champlain Towers condo complex in Florida, you’ll know that there had been warnings that the complex was structurally challenged going back to a 2018 engineering assessment. Repairs were scheduled to begin this week, starting with the roof.

Today the Miami Herald published photos taken by a contractor just 36 hours before the collapse. The photos show standing water, cracked concrete, and exposed rebar in the parking garage below the pool deck, which is where the structural failure is believed to have originated. Residents who parked in the garage must have seen this.

From several news stories I get the impression that the only reason the condo board was preparing to address the problems (at an estimated $15 million) is that the building had a county mandated 40-year recertification coming up. Otherwise they may have ignored them longer.

I do not know anyone on the Champlain Towers board personally, and I may be judging them unfairly. But I imagine (I do not know) that some board members urged that repairs be made more quickly, and they were ignored by the majority who didn’t want to spend the money until they absolutely had to.

If someone could have warned them that the building would collapse and people would die, would they have acted more quickly?  If a year ago they were shown videos of the collapse, what would it have been worth to them to avoid disaster? Every penny they could get their hands on, I suspect.

And to me that Champlain Tower condo board looks a lot like Congress.

One of the many questions about the bipartisan infrastructure framework is, how will this be paid for if we can’t raise taxes? Because, you know, taxes on income and investments may never be raised and may only be cut, according to GOP dogma. Jeff Bezos may have so much money he literally doesn’t know what to do with it, so he has yachts to support his yachts and is planning to launch himself into space next month, but heaven forbid he has to pay any taxes. (See also The real crisis for American democracy is our cowardly inability to tax the rich by Will Bunch.)

Jeff Stein reports at WaPo that one agreement made by the bipartisan frameworkers is that they would take $70 billion out of unemployment compensation to pay for new infrastructure spending. However, benefits would not be cut. They are going to get the $70 billion by eliminating “waste and fraud.”

People familiar with the unemployment compensation program say that’s nuts. Waste and overpayments may add up to $35 billion — which is alarming enough — but $70 billion, no way.

The fuzzy math on unemployment benefits is just one of the debatable assumptions the Senate and White House dealmakers made in claiming they are paying for more than $500 billion in new infrastructure spending with new revenue.

No issue emerged as a greater obstacle to the bipartisan infrastructure negotiations than how to pay for it, as lawmakers were hemmed in by political realities that constrained their options.

Republican lawmakers have refused to raise taxes on corporations and the rich, which ruled out the White House’s preferred proposals. The White House, meanwhile, refused to raise taxes on Americans earning less than $400,000 a year, which led them to rule out a gas tax that some of the lawmakers had pursued.

Do read the whole article for the entire list of where the bipartisan frameworkers expect to get their revenue. Experts who have gone through the framework carefully say that the “pay fors” in the framework are wishful thinking. Remember Paul Ryan and the Underpants Gnomes?

The Underpants Gnomes are back! One suspects they never went away.

Another compromise made for the “bipartisan” bill was to eliminate anything related to climate change as infrastructure spending is planned. Currently Mother Nature is providing a nice example of why that’s stupid. It was 116° F in Portland yesterday, a place where the average high temperature for June is 73° F.

Roads are buckling. Power cables are melting.

One family felt their home shake, so they ran outside. The road in front of their house had cracked and risen six to eight inches. One suspects that building materials used in Portland were not chosen to withstand extreme heat, just as Champlain Towers may not have been designed with rising oceans in mind. At the very least, from now on engineers will have to factor climate change into their calculations, or our infrastructure repairs may not last long.

I can’t find a video clip now, but I remember seeing Mitt Romney, discussing the ongoing infrastructure negotiations, announcing that all the climate change stuff had been taken out. There was clear disdain in his voice for the “climate change stuff.” If the GOP has an official position on climate change — kind of hard to know, since they didn’t bother writing a new party platform last year — it’s to ignore it. Here’s a Brookings report from last month on how the Republican party is holding back the nation on climate change policy. The American Petroleum Institute (API) is actually more progressive than the Republican party on reducing carbon emissions.  A snip:

Many Republicans legislators still reject the science of climate change, a position not held by other mainstream parties in democratic countries, but rising among far-right parties in Europe. Their positions have not kept up with their constituents, or even some business groups with which they are typically aligned. After the API made its announcement, Senator John Barrasso of Wyoming, the ranking Republican on the Senate Energy and Natural Resources Committee, issued a statement saying, “Proposals that impose a cost on carbon will hurt American families.” In April, Representative Scott Perry of Pennsylvania announced at a hearing of a subcommittee of the House Foreign Affairs Committee that he planned to introduce a bill to withdraw the United States from the United Nations Framework Commission on Climate Change. He introduced his bill, which has no chance of passing, on Earth Day.

It’s like a clique of high schoolers who all have to wear ripped jeans, get their noses pierced, and make fun of the cheerleading squad to stay in the clique. Rep. Perry is the guy who want to be especially cool, so he slashes the tires on the Pep Club bus. It’s all about impressing one’s peers.

I look at these bozos and wonder that if they could see a video from 2023 showing a bridge collapse in their districts — even better, if their grandchildren were in a car on that bridge — they would suddenly feel a tad more urgency.  And they could look at news stories from 2032 about how crumbling infrastructure and the fragile power grid is destroying the U.S. economy, even as climate refugees — since few places within 500 miles of the Equator are habitable, and the “dead zone” is growing — are crossing the southern border to go north. Canada may be building a wall. And then we could go forward a few more years, and they could watch their adult grandchildren struggle — and perhaps failing — to survive on a destabilized planet. Fun stuff.

What would you spend to change that future, Senator? Congressperson? When do we finally get to stop burning the planet so that the most entitled members of the capitalist class can get richer? And can we do that before there are mass extinctions? What’s it worth to ya?

Your Guide to Infrastructure Kabuki

In our last episode of Infrastructure Kabuki, President Biden had committed to tying the fate of the piddly little bipartisan infrastructure bill to the much more robust reconciliation infrastructure bill. This gave hope to many progressives that Dems weren’t going to be hosed again and forced to give up legislature they consider essential in order to placate Republicans and blue dogs, who will then end up hosing them again anyway.

Republicans then put on their best fake outrage faces and hollered about being double crossed (because their plan to double cross Dems had been stymied). The beltway press mostly went along with the Republicans and reported their Kabuki drama as real news. Josh Marshall wrote on Sunday:

We started with Biden stating openly what all the parties to the proposed bipartisan legislation know, which is that for Democrats it’s a package deal. Democrats know that. Republicans know that. The reporters know that. And yet the same folks have decided to take the feigned Republican freakout entirely at face value regardless. Politico of all places was closer to the mark on Friday when they noted that it took a day for Republicans to realize they were upset and what about.

And it’s actually accelerated over the weekend.

Yesterday the conventional wisdom among DC reporters was that yes this was all known. But Biden stated it too openly. So it was excessive candor that upset a fragile bipartisan coalition rather than any change of strategy or position. But hear Annie Linskey in the Post last night: “President Biden on Saturday reversed a stand he had taken forcefully just two days earlier …” The weekend clarification statement has now gone from being a fuzzy and ambiguous statement muddying up linkage to an abject surrender after a forceful assertion of a new policy.

See also David Dayen at The American Prospect, Washington Isn’t Used to the Left Setting the Agenda.

Biden, responding to press questions after signing off on a bipartisan infrastructure agreement reached with ten senators, explained that it was just one half of an agenda that also included a separate public-investment bill, the American Families Plan, which included spending on education, welfare benefits, the care economy, and more. Both halves would “move through the legislative process promptly and in tandem,” Biden said. He then added that if the two bills didn’t arrive at his desk, he wouldn’t move forward with just the bipartisan measure. “If this is the only thing that comes to me, I’m not signing it,” he concluded.

Washington, or at least the part of Washington wired for Republicans, went berserk. It was called “extortion,” and a “double cross.” Sen. Lindsey Graham (R-SC) left the bipartisan gang in a huff, and Sen. Jerry Moran (R-KS) tried to get moderate Democrats to sabotage the reconciliation bill.

The caterwaul led the White House to walk back the statement, although careful perusal doesn’t show all that much walking back. Biden said in a statement that it was “certainly not my intent” to give the impression that he was threatening to veto the bipartisan bill absent a follow-up. But he added that he would still move forward with a second bill under budget reconciliation. “Our bipartisan agreement does not preclude Republicans from attempting to defeat my Families Plan,” Biden said; “likewise, they should have no objections to my devoted efforts to pass that Families Plan and other proposals in tandem.”

In other words, Biden is saying yes, he will still pursue a second bill, and Republicans can go ahead and try to stop it, even though they don’t have the votes, since reconciliation bills can go forward with a bare majority in the Senate. GOP members of the bipartisan gang appeared satisfied with this take on the Sunday shows, even though it’s not all that different from what Biden said extemporaneously at the press conference.

The usual bullshit. But whatever President Biden might have said, Nancy Pelosi has vowed the bipartisan bill doesn’t get voted on in the House before the reconciliation bill passes in the Senate. And none of this could possibly have been news to anybody inside the Beltway. I was writing here about the two bills being tied together at least ten days ago.

Note that neither bill is a bill yet; they’re both just frameworks at the moment.

Today, Mitch McConnell (in the Kabuki role of Aragoto) is still working the refs to get the two proposed bills decoupled. Mitch has assigned himself the role of arbiter of what’s proper and what’s not among Democrats, and he is demanding that Democrats in Congress drop the reconciliation bill. Kate Riga writes at TPM:

Senate Minority Leader Mitch McConnell (R-KY) insisted Monday that Democratic leadership drop its so-far effective strategy to link the bipartisan and reconciliation infrastructure bills, to make it easier for him to extract a win on the former and watch the latter die. …

… “Unless Leader Schumer and Speaker Pelosi walk-back their threats that they will refuse to send the president a bipartisan infrastructure bill unless they also separately pass trillions of dollars for unrelated tax hikes, wasteful spending, and Green New Deal socialism, then President Biden’s walk-back of his veto threat would be a hollow gesture,” McConnell wrote in his Monday statement.

Yeah, how dare Democrats set their own agenda! The nerve! Paul Waldman:

Senate Minority Leader Mitch McConnell (R-Ky.) declared on Monday that to win Republican support for the bipartisan infrastructure bill being negotiated in the Senate, Democratic leaders must renounce any plans to pass a partisan bill via the reconciliation process, one that would go further to “human infrastructure” needs such as pre-K and elder care. …

… But here’s the crazy part: McConnell is telling Biden what he can and can’t do to pass the very bipartisan bill that McConnell will filibuster to defeat. It’s like the Yankees manager running on the field to tell the Red Sox pitcher he’s not allowed to throw curveballs or sliders.

Given that McConnell will not only vote against the bipartisan bill himself but will do everything in his power to kill it, who cares what he thinks?

Mitch’s preferred scenario is for neither bill to ever become law, of course.

Related news: It was a bleeping 112 degrees on Portland, Oregon, yesterday. The heat in Eugene was so bad the Olympic track and field trials were suspended several hours. Note that one of the major differences between the bipartian infrastructure bill and the reconciliation bill is that the bipartisan committee refused to consider any climate change mitigation measures as part of “infrastructure.” See 6 crucial climate actions the Senate left out of its infrastructure deal. Republicans (and Dem “moderates”) aren’t going to lift a finger to stop climate change until it affects them personally, and then they’ll blame progressives for not fixing it sooner.