The most powerful TV shows of the past 25 years

Jason Kottke points to the fascinating interaction between television shows and the real world; this one in particular, in which “Curb Your Enthusiasm” helped keep a man off death row, is incredible:

This is a really interesting and eclectic list of 25 TV shows that have had an impact on society beyond the water cooler. There are a few obvious choices, but most of these I hadn’t heard of.

In 2003, 24-year-old machinist Juan Catalan faced the death penalty for allegedly shooting a key witness in a murder case. Catalan told police that he couldn’t have committed the crime — he was at a Los Angeles Dodgers game at the time. He had the ticket stubs and everything!

When police didn’t buy his alibi, Catalan contacted the Dodgers, who pointed him to an unlikely hero: misanthropic comedian Larry David. On the day in question, David had been filming an episode of Curb Your Enthusiasm in Dodger Stadium. It was a long shot, but maybe Catalan could be seen in the background. When his attorney watched the outtakes, it took just 20 minutes to find shots of Catalan and his daughter chowing down on ballpark dogs while watching from the stands.

Thanks to the footage, Catalan walked free after five months behind bars. And Larry David found one more thing to be self-deprecating about. “I tell people that I’ve done one decent thing in my life, albeit inadvertently,” joked David.

(via @fimoculous)

Ending the Death Penalty and the Mindset Behind It

I’ve been very fortunate to write a monthly column for the Daily Nebraskan this year in which I’ve been able to make arguments and try out ideas that relate to politics, social justice, and human rights.

I began, back in August, with a long piece about my personal experience of getting to know Ronnie Frye, an inmate on North Carolina’s death row who was executed ten years ago. I want to close out the academic year with another column that considers the human face and the human cost of our death penalty system.

I write at a pivotal moment: Connecticut has repealed its death penalty statute, becoming the seventeenth state to do so and, in November, California will consider a ballot initiative to do the same. With five states abolishing the death penalty in five years and several more states seemingly poised to do the same, the dominoes have clearly started to fall. Opponents of the death penalty have found ways to persuade legislators — if not the general public — that the system is expensive, biased, and horribly flawed.

But this is as good a time as any to begin a difficult conversation.

In particular, I want to suggest that we need to think critically about the trade-off we’re making when we do away with the death penalty and condemn people to life imprisonment without the possibility of parole. We should make no mistake that this too is a death sentence and it’s one actually considered to be worse by some of the people who currently sit on death row.

This isn’t to diminish the difficult and important work done by death penalty abolitionists or to discourage anyone in the work that remains to be done. It is only to note that, in our desire to end the death penalty and save lives, we have allowed our opponents to continue to shape the conversation about crime, justice, and human rights. I’m not convinced we need to yield this ground.

In writing about the ballot initiative in California, death row inmate Kevin Cooper argues:

We who are on death row will also lose our legal habeas and habeas appeal process that we have and are currently entitled to under the law. So we are in fact taking a step backwards in our ability to challenge our convictions. We are also having to take our fight for our collective human rights to another level. What I mean by this is, Level IV prisons within the State of California are some of the worst prisons in the world! They are worse than death row in the violence that takes place, in the lack of programs, including educational programs, they stay on lockdown, and many families cannot get to these isolated prisons to visit their loved ones.

Interestingly, many death penalty supporters will see this as a good sign. If we have to do away with the death penalty, then at least we can be consoled by the knowledge that we’re replacing it with a punishment that’s also terrible. This is something death penalty opponents, who often make forceful moral arguments about the dignity and human rights of death row inmates, need to consider carefully.

Indeed, at the heart of the idea of both the death penalty and life imprisonment without parole is the notion that the offender is completely and utterly devoid of humanity. With this in mind, prison isn’t about correction and rehabilitation; it’s about punishment and revenge. If the death penalty is too expensive, if it risks the execution of an occasional innocent, and if it doesn’t cause all that much suffering, then it can be jettisoned in favor of a punishment that’s cheaper, that we can correct when we err, and that — if done properly — might be even worse for offenders.

Why are we committed to making life as terrible as possible for some people? Why isn’t it sufficient to remove someone from society, to restrict his or her liberty, and to keep ourselves safe while continuing to respect the inherent human dignity of the person in question? In large part, it’s because we’ve convinced ourselves that these people — those we say deserve to die — are not like us in the most decisive respect.

When we say someone deserves to die, what we’re saying is that an offense has been committed that is so far beyond the range of normal behavior that we can’t even begin to imagine the worldview of the offender and we can’t imagine continuing to occupy the same plane of existence.

I don’t want to be read as saying these feelings are abnormal. Indeed, it’s quite normal to want to express our solidarity with the families of murder victims, make clear our outrage at the terrible crime that has been committed, ensure our safety, and punish these offenders for what they’ve done. But I think there’s a disconnect between these normal feelings and the desire to punish in a manner that causes the most suffering and that strips the offender of his human dignity.

I’m also not arguing against life imprisonment without the possibility of parole; I’m simply suggesting that the way in which so many people are currently thinking about it — as an opportunity to for society to inflict a lifetime of brutality on offenders — is both troubling and a missed opportunity. Why not, instead, think about life imprisonment as an ongoing opportunity for rehabilitation in an environment that protects the public and restricts liberty as a consequence of bad actions? Changing our outlook in this way would likely mean changing the way we think about prison more generally, and it would cause us to take a long, hard look at prison conditions in this country. But this is long overdue.

In the end, I want to suggest that there’s a middle ground to walk … if only we can begin to look for it. This is a line between toughness and softness on crime, which allows us to stand with victims and co-victims of violence without jettisoning the idea that all human beings are the bearers of dignity. It ultimately recognizes the humanity of even those whose actions have made them the objects of our hate and fear. After all, it’s in treating decently those who have harmed us that we most distinguish ourselves from them.

This will be difficult for us, to be sure, but that’s why we need to begin the conversation now. As we recognize that the death penalty is cruel, unusual, and simply doesn’t work, we ought to also start thinking about what prison terms can and should mean for offenders, for victims, and for society at large.[1]

Rick Santorum Doesn’t Understand Rights

7M Californians had their rights stripped away today by activist 9th Circuit judges. As president I will work to protect marriage.

— Rick Santorum (@RickSantorum) February 7, 2012

It’s not at all interesting or surprising that Rick Santorum opposes the 9th Circuit ruling.

What’s interesting, at least to me, is that he seems not to understand what rights are or what they do. Say what you will about the 9th Circuit ruling, but it certainly doesn’t harm Californians with regard to their rights. The Californians whose rights are of such concern to Santorum can continue to get married tomorrow and the next day, just as they could yesterday and the day before. There has been no change for them.

My own feeling, of course, is that there’s also no harm done to these (heterosexual) Californians by allowing other (homosexual) Californians to marry. But that’s really neither here nor there.

Let’s be charitable and give Santorum the benefit of the doubt; let’s presume that he’s upset about the invalidation of a ballot initiative for which these Californians cast their votes. What he means to say, then, is that the “activist” judges of the 9th Circuit circumvented the right that these Californians have to cast ballots and decide important matters of governance for themselves.

Except we all know that the judiciary exists in order to check the excesses that might occur as a result of the democratic process. After all, I doubt anyone would bat an eye if a court struck down a ballot initiative that declared that Jews couldn’t own property, that Asians had to live outside the city limits, or some other patently racist, arbitary, or ridiculous thing that a majority got into its collective head. Or, if you’re really worried about the invalidation of people’s votes, just think about the millions of people whose democratic right to vote was invalidated by the Supreme Court in Bush v. Gore. I’m guessing Santorum didn’t lose a lot of sleep over that one.

What Santorum wants is for the Court to sanction certain forms of discrimination. It would be handy if there was another way for us to say this, but there simply isn’t. He wants one group to be able to do something and another group not to be able to do that same thing, simply because he disapproves of the second group.

Very, very few people would stand by Santorum if he claimed that mixed-race marriages were inappropriate or if he championed the right of store owners to refuse service to an African-American or Jewish clientele. That sort of discrimination offends nearly everyone, regardless of party identification. So should this sort.

Dressing up Santorum’s personal bigotry in the language of rights is convenient for him; it sounds a lot better to want to protect people’s rights than to want to discriminate against other people. But I think we all know what’s going on here.

Circumcision Bans, Religious Freedom, and State RFRAs

What follows is a guest blog post, written by my wife Sara Lunsford Kohen. Sara received her J.D. with highest honors from the University of Nebraska College of Law in 2011 and her B.A., summa cum laude, in political science and Spanish from James Madison University in 2007. She is the author of an article about the religious liberty provision of the Nebraska state constitution and is currently working on an article about the applicability of the Federal Religious Freedom Restoration Act to suits between private parties.

Much has been said recently about the proposed circumcision bans in San Francisco and Santa Monica.  Both Judaism and Islam require circumcising boys, and so it is not surprising that many people are outraged by the proposed bans. What may surprise some, however, is how little legal protection this core religious requirement may get.  This is surprising because Americans tend to cherish the idea of religious liberty, at least in the abstract. After all, many of the first European settlers arrived on our shores fleeing religious persecution.  Later, the framers of the Constitution provided that Congress “shall make no law respecting the establishment of religion or prohibiting the free exercise thereof…”[1]  Scholars have advanced a variety of arguments for why we ought to protect religious freedom, but one of the most relevant here is that, for many, religious beliefs and practices are not mere preferences.  Rather, they are central to how many people think and act.  Thus, a person whose religious practice has been outlawed faces an impossible choice: to act in accordance with his or her beliefs and face criminal penalties, or violate these beliefs in order to conform his or her behavior to the law.  Faced with this choice, unpopular religious groups have often been forced to leave their homes to avoid persecution.

The U.S. Supreme Court for many years recognized this problem and so required granting religious exemptions from laws that imposed substantial burdens on religious practice unless not granting the exemption was the least restrictive, effective means of furthering a compelling governmental interest.[2]  This test both recognized the importance of religious freedom and acknowledged that this freedom must sometimes give way to the public’s interest in enforcing the laws.  However, the Supreme Court abandoned this test in 1990 in Employment Division, Department of Human Resources v. Smith, instead holding that the First Amendment’s Free Exercise Clause does not require granting exemptions from neutral, generally applicable laws—those that do not target religious conduct and cover non-religious conduct to the same extent as religious conduct.[3]  Although Congress, appalled by this holding, passed the Religious Freedom Restoration Act (the “federal RFRA”), which restores the compelling interest test for federal laws that burden religious exercise, Congress does not have the power to bind state governments in this way.[4]  Therefore, the Federal Free Exercise Clause provides little protection against state and local governmental action: few lawmakers would be so foolish as to pass a law that, on its face, discriminated against a particular religious group.  Far more common—and dangerous—are laws such as the proposed circumcision bans that are facially neutral toward religion but that nonetheless severely burden individuals’ religious liberty.

This does not necessarily mean that the Jews and Muslims of San Francisco and Santa Monica would lose a challenge to the bans if they pass.  The Supreme Court has looked past a law’s facial neutrality before, finding that an ordinance banning religious animal sacrifice targeted members of the Santeria religion, and therefore required applying the compelling interest test.[5]  In that case, the anti-Santeria intent was obvious, both because of the ordinance’s legislative history and from the fact that the law allowed virtually all other animal killings.[6]  Similarly, if the circumcision bans pass, the Court might be willing to look past their facial neutrality and find an intent to drive Jews and Muslims out of San Francisco and Santa Monica.  This inference is supported by the “Foreskin Man” comic book, an anti-Semitic work created by Matthew Hess, who drafted the prototype for the San Francisco ordinance.  More evidence of discriminatory intent would likely be required, however.  If the Court found such an intent, it would apply the compelling interest test and likely find that the ordinances violate the Free Exercise Clause.[7]  It is also possible, however, that the Court would conclude that the bans are neutral and generally applicable, and therefore valid under the Federal Free Exercise Clause.

Fortunately, the inquiry does not end here: the California constitution protects religious freedom, independently of any federal protection.[8]  However, the California Supreme Court has not yet decided what test its constitutional provision requires: the less-protective Smith test or the compelling interest test.[9]  Some state supreme courts, such as in my home state of Nebraska, have held that the state constitutional protections of religion provide no more protection than the Federal First Amendment.[10]  In the meantime, Jewish and Muslim residents in San Francisco and Santa Monica must wonder whether they will be forced to travel elsewhere in order to practice their religion.  Fourteen states have dealt with similar problems by passing state religious freedom restoration acts (“state RFRAs”), which require the compelling interest test for state laws that substantially burden religious freedom.[11]  California does not have a state RFRA: the legislature passed one in 1998, but the governor vetoed it.[12]

 The proposed circumcision bans illustrate the need for more state RFRAs.  They are essential because they provide a legal recourse to people whose religious practices are forbidden by state law.  By requiring the compelling interest test, state RFRAs properly balance individuals’ and groups’ interests in religious freedom with the federal government’s interest in forbidding religious exemptions from neutral, generally applicable laws.  Without them, religious freedom in many states is left to the whim of the majority, a result contrary to the purpose of protecting religious freedom in the first place.  

[1]  U.S. Const., amend. I.

[2]   See Sherbert v. Verner, 374 U.S. 398 (1963)

[3]  Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872 (1990).  The compelling interest test still applies to non-neutral, non-generally applicable laws.  See Smith, 494 U.S. 872.

[4]  See 42 U.S.C. §§ 2000bb–2000bb-4.  Though the original version of the law also applied to state law, but the Supreme Court declared that this violated Congress’s Fourteenth Amendment power to make laws ensuring due process and equal protection of the laws.  City of Boerne v. Flores, 521 U.S. 507 (1997). 

[5]  See Lukumi, 508 U.S. 520. 

[6]  See id.

[7]  Alternatively, another exception to the Smith test might apply because the case would involve both free exercise and parental rights.

[8]  See Cal. Const. art. 1, § 4.

[9]  See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal.4th 527, 562 (Cal. 2004).

[10]  See In re Interest of Anaya, 276 Neb. 825, 758 N.W. 2d 10 (2008).  For an in-depth treatment of this case, see my article, The Erosion of Nebraska’s Free Exercise Protection: In re Interest of Anaya, 276 Neb. 825, 758 N.W. 2d 10 (2008), 89 Neb. L. Rev. 159 (2010).

[11]  See Ala. Const. art I, § 3.01; Ariz. Rev. Stat. Ann. § 41-1493.01 (West 2004); Conn. Gen. Stat. Ann. § 52-571b (West 2005); Fla. Stat. Ann. § 761.01 to 761.05 (West 2010); Idaho Code Ann. §§ 73-401 to 73-404 (Lexis Supp. 2005); 775 Ill. Comp. Stat. Ann. 35/1 to 35/99 (West 2001); Mo. Ann. Stat. Ann. §§ 1.302 & 1.307 (West Supp. 2011); N.M. Stat. Ann. §§ 28-22-1 to 28-22-5 (2000); 51 Okla. Stat. Ann. §§ 251 to 258 (West 2008) ; 71 Pa. Stat. Ann. §§ 2401–07 (West Supp. 2010); R.I. Gen. Laws §§ 42-80.1-1 to 42-80.1-4 (1998); S.C. Code Ann. §§ 1-32-10 to 1-32-60 (West 2005); Tex. Civ. Prac. & Rem. Code Ann. §§ 110.001 to 110.012 (West 2005); Va. Code Ann. § 57-2.02 (LexisNexis 2003); Utah Code Ann. §§ 63L-5-101 to 63L-5-403 (LexisNexis 2004).

[12]  See A.B. 1617 (1998), available at http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_1617&sess=9798&house=B&author=baca.