Should We Let Dirty Harry Do the Spring Cleaning?

Is there a time when it makes sense to throw the baby out with the bathwater? During spring cleaning we get rid of the all the detritus. We throw things out to make room for new life. Does the same pertain in the world of ideas. What does it mean to have a cleansing in a society which tolerates a certain degree of impurity and imperfection (aka pluralism) by its very nature? Everyone is threatened by terrorists and many of the terrorists, who are a danger to western democratic societies today, happen to be extremist Muslims. Donald Trump and others have advocated closing our borders to Muslims as a way of making sure no terrorists manage to get into the country. During the World War II even such an august defender of the principals of democracy as President Roosevelt advocated interning Japanese citizens. Indeed there are those who would suspend the constitution in times of war.  Stop and Frisk policies are another form of throwing the baby out with the bathwater since they penalize many young black men to spare the population from the few who might be guilty of crimes. In so doing it has created a disenfranchised class with rap sheets in place of college degrees. The issue may come down to something as basic as reading a suspect his or her Miranda rights. Does the protection of rights transcend even the immediate dangers posed by a criminal? Clint Eastwood’s Dirty Harry took matters into his own hands when he felt justice wasn’t being met? Are we ready to throw the baby out with the bathwater and join the lynch mob when a killer's on the loose?

Mirandizing Your Don Juan

Max Slevogt’s portrait of Don Juan in Mozart’s Don Giovanni

Say you're making a citizen’s arrest on a California campus for a person who has not gotten your affirmative consent to sex. Say someone has been cajoling you and flirting with you and trying to get you into bed and after hours of being utterly charming, you say ok what the hell I’ll reward him or her for his or her persistence, should you mirandize that person? Taking this further what if you give your affirmative consent to one kind of sex, but inadvertently find yourself being lovingly cajoled into another kind of sex which you partake in but which is not listed on your affirmative consent form, what recourse should you seek? Let’s say you have read the guilty party their Miranda rights, and they are already whimpering and acting contrite, do you enjoin them in some way? Do you attempt to have their paycheck garnished? What are all the possible ways that people can be punished for getting you to do something you were pretty sure you didn’t want to do? Let’s make this clear, the person didn’t rape you or physically harm you, but he or she talked a blue streak and though you were involved with someone else, you became infatuated and were stimulated to do inconceivably dirty and horrible things with that person, things you hadn’t ever done with the person you say you loved because of the passion this charmer created in you and which you were not in your right mind to affirmatively consent to, in the first place. How should this person be punished?

With Liberty and Justice For All

The quotation of the day in Wednesday’s Times was taken from President Obama. “The idea that we would still maintain forever a group of individuals who have not been tried, that is contrary to who we are, contrary to our interests, and it needs to stop.” In the piece from which the quote was taken “Amid Hunger Strike, Obama Renews Push to Close Cuba Prison," (NYT, 4/30/13), the president is also quoted as saying “The notion that we’re going to keep 100 individuals in no man’s land in perpetuity…All of us should reflect on why exactly we are doing this? Why are we doing this?” There are a lot of talk about exceptions. Exercising the public safety exception was debated in terms of Mirandizing the surviving Tsarnaev brother in the Boston marathon bombing. But it’s precisely at times like these in which Constitutional guarantees, due process and adherence to the Geneva Conventions are truly tested. It’s nice to discuss the Bill of Rights in a law school classroom, but the power of the document is vindicated when it's exercised with respect to those for whom we would like exceptions to be made—those we fear and hate. Dismantling Guantanamo is undoubtedly a nightmare, but any country that is capable of landing on Mars, can certainly work out the logistics of the human rights debacle posed by the detainees.