Welcome to my archives. This is a long list of most of the commentaries and longer articles I have written since 1989; the hundreds of articles I wrote for the New York Times from 1980-1988 can be found via the SELECTED MEDIA OUTLETS box. They are sorted by date, with the most recent posts first. If you want to find something specific, I would encourage you to use the search feature in the sidebar. It is powered by Google. It is fast and accurate.
Mangled Sentence: Read It and Weep
by Stuart Taylor, Jr.
Robert Freeman did some insider trading. John Poindexter deceived Congress. Fred Hagler helped another guy sell 2.3 ounces of crack.
They have two things in common: None deserves to go to prison. Yet all probably should-for a few months-to deter others from doing what they did.
But that’s not quite the way it’s going to turn out. And the differing prospects of these three men shed an unflattering light on our system of justice and our society’s moral sense of proportion.
Freeman, former head of arbitrage at Goldman, Sachs & Co., was sentenced April 17 to four months (plus a $1 million fine) for seeking inside information about a pending takeover and using it to unload $500,000 in options.
Poindexter, convicted April 7 on five felony counts of false statements to Congress and obstruction of its investigations into the Iran-Contra affair, faces a theoretical maximum of 25 years.
But he will probably get two years or less-and maybe no prison time at all, like his co-conspirators Robert McFarlane and Oliver North.
Fred Hagler acted as middleman between a small-time drug dealer and buyers (who turned out to be undercover operatives), and attended the sale. He was sentenced in April to 20 years, without parole.
A 37-year-old father of three, he will be locked up until at least 2007, and that’s if he earns all possible good-time credits. But for an unusual break he received from the prosecution, Hagler would have faced a congressionally mandated minimum prison term of life without parole.
Courtroom of the Absurd
This for a doer of odd jobs who eked out a meager existence with his common-law wife and children in a Los Angeles ghetto, a man who was wiretapped asking a customer for a $60 loan so he could go "down to Toys-R-Us" to buy his little boy a birthday present.
Poor Taste Makes Bad Law
by Stuart Taylor, Jr.
When an art Institute in Philadelphia displayed Robert Mapplethorpe’s homoerotic photographs, it was subsidized by the National Endowment for the Arts.
When an art museum in Cincinnati displayed the photos, it was raided by police and hit with an obscenity indictment by a local grand jury. Its director could face a year in jail.
This is the reductio ad absurdum of the brouhaha that erupted last year, fanned by the Republican right in Congress, over the arts endowment’s grant of $30,000 to the Institute of Contemporary Art in Philadelphia for a retrospective of Mapplethorpe’s work.
The indictment provides fresh evidence of the foolishness of all obscenity laws (except narrowly drawn laws against child pornography) that criminalize the sale or display of sexually explicit materials to consenting adults.
But silly as it is legally, the Cincinnati case lends weight to the view that some of the Mapplethorpe photographs are so deeply offensive to so many citizens that tax dollars should not be used to subsidize their exhibition.
The finding by a randomly chosen grand jury that seven of the 125 photographs were obscene suggests that, however admired by art connoisseurs, these works are anathema to average folks whose taxes paid for the Philadelphia exhibit.
The suggestion is not conclusive. These grand jurors, like the congressmen caterwauling about dirty art, may be more easily offended than the public at large-which, one hopes, can tolerate a trickle of federal money to finance some art that may be challenging or even shocking.
The dispensers of federal art money should reflect, nonetheless, on how Mapplethorpe’s shots of a forearm shoved into an anus and a man urinating into another’s mouth played in Cincinnati the next time someone comes looking for a federal grant to display similar works.
Neither Censor Nor Fund
Coercive Encounters of the Worst Kind
by Stuart Taylor, Jr.
It’s after midnight. You are hurrying through the airport with a carry-on bag, impatient to get home from a business trip, looking around for a phone booth to call ahead.
A man keeps pace with you, staying close. He makes eye contact. You look away. Another man hovers nearby. You walk faster. The first man closes in from the side. The other circles behind you. Your heart is pounding.
"Excuse me." He flashes a badge. "Can I talk to you? I’m a narcotics interdiction officer, and we’re trying to stop drugs from coming in here.”
You know you’ve done nothing wrong. But suddenly you’re a suspect. Your hands are shaking.
He asks for your ticket. He asks for identification. He asks where you came from. He asks where you’re going. He asks whether you have any illegal drugs. He asks whether he can look through your bag.
All the while, his partner stands behind you, attentively.
Pop quiz: (1) Are you free to treat the officer like a panhandler, tell him you’re in a hurry and walk away? (2) If you answer his questions until he asks to search your bag, can you then stop, say you’ve had enough of being treated like a criminal, and leave? (3) If you do that, what will the cops do?
To courts such as the U.S. Court of Appeals for the D.C. Circuit, the answers to the First two questions raised by this increasingly familiar scenario are crystal clear: Of course you are free to leave. It’s so obvious that any "reasonable person" would know it.
It follows, these courts say, that such "encounters" are in no way coercive. As long as the police are polite and do not overtly restrict their quarry’s movement, they may ask anyone to consent to be questioned and searched. The strictures of the Fourth and Fifth Amendments do not apply: no need for a warrant, no need for any reason to suspect the targeted individuals of criminality, no need to tell them their rights.
The Brawling on the Bench by Justices Who Must Decide the Law of the Land
by Stuart Taylor, Jr
WASHINGTON — If recent history is any guide, by June the Supreme Court justices will be sour, sullen and snarling at each other in their opinions.
Last summer, Justice Antonin Scalia called Justice Sandra Day O’Connor’s position in an abortion case "irrational," "perverse," "indecisive" and so fatuous it "cannot be taken seriously." And they were voting on the same side.
Justice Harry A. Blackmun was no less circumspect in dissenting from the court’s decision to cut back abortion rights. He called Chief Justice William H. Rehnquist’s plurality opinion "unadulterated nonsense" reeking with "cowardice and illegitimacy."
Still, life at the Supreme Court is rather chummy these days. Compared, that is, with the way it used to be.
Consider James C. McReynolds, a choleric, anti-Semitic right-winger. He gave Louis D. Brandeis the silent treatment from 1916 until 1939 and left the room when Brandeis spoke at conference.
Brandeis took this serenely. "McReynolds is one of the most interesting men on the present court," he told Felix Frankfurter. "I watch his face closely and at times, with his good features, he has a look of manly beauty, of intellectual beauty, and at other times he looks like a moron . . . . I have seen him struggle painfully to think and to express himself and he just can’t do it coherently."
By 1946, Franklin D. Roosevelt’s court had broken out into such bitter personal feuding that then-President Harry S. Truman lamented, "The Supreme Court has really made a mess of itself."
It’s less a mess now. But the philosophical divisions are as passionate as ever. And if the antagonisms have run deeper in the past, they have seldom been so public. Opinions of the last two years contain some of the most vituperative attacks on other justices in court history.
Ten Years For Two Ounces
by Stuart Taylor, Jr
"For the kingpins-the masterminds who are really running these operations, and they can be identified by the amounts of drugs with which they are involved-we require a jail term upon conviction. If it is their first conviction the minimum term often years."- Robert Byrd, Democrat of West Virginia, then the Senate minority leader and a principal sponsor of the Anti-Drug Abuse Act of 1986, on September 30, 1986.
MEET RICHARD Anderson and Susana Sanchez-Robles, drug kingpins.
Born poor into a Louisiana sharecropping family, Anderson left school in the eleventh grade to work. He fought his way into the longshoreman’s union in Oakland in the six-ties, when black-while brawls were part of the job. He did well. Now 48 years old, he is a skilled crane operator with a stellar work record after 24 years on the docks.
Anderson was driving his heat-up 1972 Toyota through Fast Oakland the evening of December 12, 1988, headed for a family birthday party at his sister Marilyn’s house. From there he would go to the docks to work the graveyard shift.
Anderson spotted Michael Lucero at a phone booth. Lucero, the teenage boyfriend of a friend’s daughter, flagged him down. Could he have a ride to Burger King and then home? Sure, for a couple of dollars of gas money.
At the Burger King parking lot, Lucero got out and said he’d be back in a few minutes, Moments later a big man-6 feet 5 inches big-opened the passenger-side door and got in. It was night and a dangerous part of town. Anderson was scared. The big man picked up a yellow paper bag Lucero had left between the two front seats. "Is this the stuff?" he asked. "I don’t know," said Anderson. "What stuff?" The big man took the paper bag and left.
Now Anderson knew this was a drug deal. He was trying to start his car and leave when men with guns and badges swarmed around him.
White Lies in the White House
by Stuart Taylor, Jr.
Poppy Bush is going to take his ball and go home.
He has seen news accounts comparing some of his statements with subsequent disclosures intimating he was not exactly telling the truth. Some have been so gauche as to suggest that President Bush’s passion for secrecy has spawned a penchant for fibbing.
The president was not amused.
"I think we’ve had too many press conferences," he told reporters Feb. 15, aboard Air Force One. "It’s not good. It’s overexposure to the thing…. We’ve got a whole new relationship. It will be pleasant. It will be fun. It will be fun. But it will be different."
Henceforth, the president announced, there would be "a new thing, a new approach" when he is pestered with questions about affairs of state: "I’m not going to discuss it," he said. "I’m not gonna be burned for holding out or doing something deceptive."
By the end of his little display of pique, the president, grinning at his own cleverness, was no-commenting even on whether he had a good night’s sleep, "because some will think it is too much sleep and some will think it’s too little sleep."
This presidential fencing with the White House pressies, some of whom have feasted at state dinners and cavorted at Camp David, has a clubby, intramural flavor that tends to obscure how casually George Bush and his aides are wont to mislead the American people.
The pattern of deception goes back at least a decade. It includes politically expedient false denials both of plans the president has for the future and things he has said and done in the past.
We are not talking, here about deceptions motivated by imperatives like protecting the security of a military operation or the life of a hostage.
A Kick Out of Surprises
Panamanian Pandemonium
by Stuart Taylor, Jr.
A simple assassination would have been a lot cleaner. Instead, President George Bush launched a 25,000-person military invasion that killed hundreds of Panamanians and 26 U.S. citizens, left thousands maimed or homeless, brought condemnation in world opinion, and climaxed with the unprecedented spectacle of a foreign ruler flown in shackles to stand trial in the United States.
Why not just send a hit squad after the despised Gen. Manuel Antonio Noriega? Because that would be immoral? Come now, what’s immoral-killing one murderous despot or hundreds of innocent young soldiers and civilians?
No, the reason we don’t assassinate foreign tyrants any more is Realpolitik: It would set a precedent for our enemies, the baleful consequences of which a U.S. president can readily appreciate.
So, in hopes of hitting Muammar al-Qaddafi, then President Ronald Reagan sends 18 bombers that miss Qaddafi but kill his 15-month-old adopted daughter and others. To get Noriega, President Bush opts for deaths by the hundreds.
And among the president’s justifications, he lists putting this one man on trial-not in Panama for crimes against his own people, but in Florida for the same drug trafficking that the CIA condoned when Noriega was a U.S. "asset."
The policy against assassinations is sound. And the reasons for it should give pause to those who so contemptuously brush aside concerns about the casual trampling of international law that attended the president’s glorious little war.
Violations of international law set precedents, too, for every tinpot dictator or demagogue with aggressive designs against neighbors or U.S. citizens abroad. Witness Iran’s aping of a Justice Department legal opinion last year, when that country authorized the arrest anywhere in the world of Americans who damage Iranian interests.
Fending Off ‘Fighting Words’
by Stuart Taylor, Jr.
When Sen. Jesse Helms last year proposed restrictions on government support for offensive speech, liberals quickly branded him a Neanderthal right-wing censor.
But what about those liberals with censorial tendencies of their own? Are they Neanderthals, too-or some other, more sensitive, species?
It was Jesse Helms, the North Carolina Republican, who pushed through the Senate last summer a ban on use of federal arts money for "material which denigrates, debases, or reviles a person, group or class of citizens on the basis of race, creed, sex, handicap, age or national origin." (His more widely publicized provision would have cut off money for "obscene or indecent" materials.)
The president of the University of Pennsylvania denounced the Helms proposal as an effort "to cleanse public discourse of offensive material."
But in strikingly similar language, his own university forbids as harassment "any behavior, verbal or physical, that stigmatizes or victimizes individuals on the basis of race, ethnic or national origin … and that… creates an … offensive academic, living or work environment."
The urge to censor campus speech is prompted by dozens of ugly racist incidents that have fouled campuses around the nation. These have included the posting of racist epithets, jokes, and caricatures on signs and bulletin boards, and shameful physical and verbal attacks on minority students and homosexuals.
Vandalism and physical assaults or threats can of course be punished without free-speech qualms. But even purely verbal attacks can also inflict great trauma, especially on minority group members who feel isolated, conspicuous, and unwelcome on overwhelmingly white campuses.
Smart, Tough and Political
by Stuart Taylor, Jr
IT WAS THE FIRST SUPREME Court argument by an attorney general since 1980. Dick Thornburgh had chosen the occasion with care. He was defending the constitutionality of mandatory testing for drugs and alcohol in a case that he was sure to win: a challenge to federal regulations requiring extraction of breath, blood, and urine from railroad workers after train accidents.
Thornburgh started his November 2, 1988, presentation well enough, outlining the safety hazards posed by intoxicated railway engineers. But he ran into trouble as soon as the justices started asking questions. Do the railroads’ own rules against working under the influence of alcohol apply to dining car waiters? asked Justice William Brennan, Jr.
Thornburgh: "I’m not sure, Your Honor."
Justice Thurgood Marshall: "I can testify no."
Thornburgh: "You can testify no?"
Marshall: "No."
Thornburgh: "I will accept an expert witness’s testimony on that." There was laughter in the courtroom; Marshall had once been a dining car waiter, like his father before him. "Adopt the statement by Mr. Justice Marshall," Thornburgh added with relief.
But as the questions continued, it became more obvious that Thornburgh had not done his homework. He did not know which railway workers were barred from drinking on or before the job, which employees were subject to the testing rules, or how the coverage of those rules corresponded to the safety concerns he was using to justify them. "I think it’s rather important," Brennan said, as Thornburgh fumbled.
At last the attorney general was reduced to saying, "I am not going to palm myself off on this Court as an expert." Mercifully, none of the justices asked him just what, in that event, he was doing there.
Client Cash Cows Sacred No More
by Stuart Taylor, Jr.
The flashily dressed young man walks into a defense lawyer’s office, seeking representation in a drug-smuggling case. The tastefully dressed lawyer notes that this sort of thing can get expensive. The young man smiles, opens his satchel, and dumps $20,000on the desk Cash.
Assume for the moment the lawyer can take the money. Should he-unlike, say, a doctor or a car dealer-also be entitled to refuse to tell the government whom it came from? Should he be permitted to ignore the federal tax forms that most businesses are required to file every time they receive more than $ 10,000 in cash?
The Internal Revenue Service and the Justice Department have started bringing court actions to force lawyers to name clients on these forms. Respected criminal-defense attorneys-like Gerald Lefcourt of New York-say that enforcement of the reporting requirements conscripts lawyers as "informants against their clients" in derogation of their ethical duties and, in many cases, of the attorney-client privilege and the Sixth Amendment right to counsel. Hundreds of lawyers have filed the forms with blanks in place of the payer’s name.
These lawyers warn that the new cash-reporting push-together with the government’s efforts under forfeiture laws to seize drug and racketeering money paid out as attorney fees-threatens to poison the attorney-client relationship and destroy the criminal-defense bar.
The best will be driven out, warns Lefcourt. They will go to big firms where they can labor to make the world safe for "companies that put cancer-causing agents in pajamas, and everybody will think they are great."
Lefcourt and his colleagues have a point. A prime reason for a vigorous defense bar is to deter the government from bringing criminal charges in the absence of strong evidence. The system works pretty well in that regard: The vast majority of defendants are proved guilty of something because few innocents are charged.