Questioning Originalists and Textualists’ Interpretations of the U.S. Constitution

According to the Associated Press, “Originalism is a term coined in the 1980s to describe a judicial philosophy focusing on the text of the Constitution and the Founding Fathers’ intentions in resolving legal disputes.” [1]

This was a subject of the testimony of Judge Amy Coney Barrett at her recent Senate hearing about the confirmation of her appointment to the U.S. Supreme Court. She  “expounded at length on the tenets of textualism and originalism, approaches made popular by Justice Scalia that privilege plain reading of legal texts and seek to minimize a judge’s own interpretations of statute or the Constitution.” Originalism, she said, “means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it [in 1787-88]. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my policy views into it.”[2]

Although I did not follow that hearing in detail and although I am not a scholar of that philosophy, several commentaries have suggested important qualifications to such a philosophy. Here is a summary of two of those commentaries.

Professor Jack Rakove[3]

One of those commentaries was by Jack Rakove, the William Robertson Coe professor of history and American studies and a professor of political science emeritus at Stanford University and the author of “Original Meanings: Politics and Ideas in the Making of the Constitution,” which received the 1997 Pulitzer Prize in history.

Rakove starts his recent commentary by noting, “debates about originalism and how to perform it have been roiling the legal academy for several decades. Scores and scores of scholarly articles on the subject pour in annually from university law reviews; another baker’s dozen books also address it. And there is no simple way to say how we know what the phrases of the Constitution originally meant.” (Emphasis added.)

Moreover, Rakove says, “The framers never worried about its future judicial interpretation, nor would they have thought of themselves as ‘originalists.’”

For historians, “How can we determine what the Constitution truly meant except by examining why its clauses were proposed and how they were supported or criticized? The Constitution and its amendments were products of political debates; reconstructing those debates is how one would decipher its ‘original meaning.’” (Emphasis added.)

Lawyers and presumably judges, on the other hand, “assume the words the framers used had settled meanings and that a conscientious reader — an informed public official, a learned jurist or just a responsible citizen — can understand those meanings without knowing anything about the debates that produced the text.”

The above approach by lawyers and judges, however, ignores the fact “that the founding era was a period of intense conceptual change. Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time. For today’s originalists, that complexity is part of the problem. The records of history are often messy, not neat; speakers argue past each other or engage in rhetorical excess; their fears are dated, their expectations of worst consequences exaggerated.”

“Rather than accept these aspects of the historical record, today’s originalists prefer to regard the Constitution as a purely legal text, subject to ordinary rules of construction. Yet the linguistic sources they rely on will not provide the answers they seek. [For example, there “is no adequate dictionary definition of ‘the executive power’ that Article II vests in the president. [For another example, understanding] what the ‘establishment of religion’ invoked in the First Amendment meant to its framers requires examining the complex ways in which the states had supported the existing denominations of a very Protestant America. As Thomas Jefferson explained in his ‘Notes on the State of Virginia,’ the very word ‘constitution’ had multiple meanings that were still evolving precisely because Americans were trying to figure out how to make written constitutions — their greatest innovation — the supreme law of the land.”

Rakove says the “best-known example of ‘public meaning’ originalism, Justice Antonin Scalia’s opinion in the major Second Amendment case D.C. v. Heller, is . . . a travesty of historical unreason. Here, the court narrowly held that an individual right of self-defense within one’s domicile was constitutionally protected. Far from being a decision logically derived from the original intentions behind the Second Amendment, Scalia’s opinion in Heller is, ironically, a great tribute to the idea of a ‘living Constitution,’ one whose meaning evolves over time — in this case, recognizing how attached Americans had become to the use of firearms.”

Indeed, although there were “a handful of references [alluding to] an individual right to arms” in the debates surrounding the Second Amendment, “that was manifestly not the issue in dispute. The debate was about the militia, a state-governed institution whose future status was problematic because the Constitution gave Congress broad authority to oversee its ‘organizing, arming, and disciplining.’ No one then would have read the amendment to constrain the ‘internal police’ powers of the states, meaning their broad authority to secure public health and safety.”

As a result, “the practice [of originalism] does not provide the constraints on judicial rulings that its advocates claim.”

Rakove’s earlier and somewhat longer article on this same subject in the Fordham Law Review concludes with the following comment: In “the realm of politics and constitutionalism more generally, events continued to prove disruptive of linguistic stability. Critical terms, like constitution or executive power or establishment of religion or sovereignty, came under sustained pressure, not least because of the inventiveness of American revolutionary politics [in the late 18th century]. Anyone who thinks he [or she] can establish conditions of linguistic fixation without taking that turbulent set of events into account is pursuing a fool’s errand.” (Emphasis added.) [4]

Jamelle Bouie[5]

The other recent commentary came from Jamelle Bouie, a New York Times columnist and a political analyst for CBS News, who cites the above criticism of originalism by Rakove and by “Jonathan Gienapp, a historian of the early American republic at Stanford, [who] charges originalists with building a framework ‘such that no amount of historical empiricism can ever challenge it,’ in which neither ‘the Framers’ thoughts or agendas or the broader political, social, or intellectual contexts of the late eighteenth century’ have any bearing on the so-called original public meaning of the Constitution.”

More importantly, Bouie contends that the Civil War “shattered the constitutional order” and that the “Americans who drafted, fought for and ratified the Thirteenth, Fourteenth and Fifteenth Amendments did nothing less than rewrite the Constitution with an eye toward a more free and equal country.” As historian Eric Foner contends, these amendments were a “second founding” establishing a “biracial democracy” as opposed to the “white republic” established by the original Constitution.[6] Indeed, Bouie says, the 13th amendment in addition to banning slavery provided, “Congress shall have the power to enforce this article by appropriate legislation” or [in the words of the Chicago Tribune at the time] seemingly limitless authority to “prevent actions by states, localities, businesses, and private individuals that sought to maintain or restore slavery.” Similarly, the 14th and 15th amendments expanded federal power to defend individual and voting rights.

“To take the Second Founding seriously is to reject a vision that binds us to the Constitution as it was in 1787. It is also to embrace a broader vision of the ‘framing’ of American democracy, one that looks to the reconstruction of the country after its near-destruction [in the Civil War] as much as to its birth and founding.”

Conclusion

I solicit comments identifying any questening of Judge Barrett on these issues and her responses.

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[1] Assoc. Press, A.P. Explains: Originalism: Barrett’s legal philosophy, Wash. Post (Oct. 13, 2020)

[2] Fandos, Barrett, Declining to Detail Legal Views, Says She will Not Be ‘a Pawn’ of Trump, N.Y. Times (Oct. 13, 2020).

[3] Rakove. The framers of the Constitution didn’t worry about ‘originalism,’ Wash. Post (Oct. 16, 2020).

[4] Rakove, Tone Deaf to the Past: More Qualms About Public Meaning Originalism, 84 Fordham L. Rev. 969 (2015). Presumably even more grounds for skepticism about originalism can be found in Rakove’s book on the subject: Original Meanings: Politics and Ideas in the Making of the Constitution,”

[5] Bouie, Which Constitution Is Amy Coney Barrett Talking About?, N.Y. Times (Oct. 16, 2020)

[6] Foner, The Second Founding: How the Civil War and Reconstructrion Remade the Constitution (W.W. Norton & Co. 2019); Caplan: What Reconstruction-Era Laws Can Teach Our Democracy, N.Y. Times Book Review (Sept. 18, 2019)(review of Roner book).

Post-Hearing Developments in George Floyd Criminal Cases

As previously discussed, on October 12, the attorney for Defendant Thomas Lane filed a motion to include in trial evidence a video of Mr. Floyd’s incident on May 6, 2019, with three other Minneapolis police officers. This caused the Prosecution that same day to seek an order for a temporary protective order on future filings in the cases that the court denied in a hearing on October 15.[1]

On October 16, the other three defendants—Derek Chauvin, Tou Thao and J. Alexander Kueng—made similar applications for use of evidence regarding Mr. Floyd’s May 6, 2019 incident with Minneapolis police. Also on the 16th the court denied Kueng’s related motions to file video exhibits for his motion to change venue.[2]

As discussed in a prior post, immediately after the October 15th hearing, Thomas C. Plunkett, the attorney for Defendant J. Alexander Kueng, and Earl Gray, the attorney for Defendant Thomas Lane, were harassed by protesters.

The next day Mr. Plunkett filed a motion for leave to file video evidence of the protesters conduct after the hearing. It said, “once again, protestors engaged in criminal conduct placing at least one attorney and the general public at risk. This conduct was captured on video. The video depicts a protestor committing acts in violation of Minn. Stat. 609.749 Subd. 3 (4) – Harassment, Stalking. A separate video depicts a protestor being arrested and deputies finding a gun in the course of the arrest.” [3]

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[1] See these posts to dwkcommentaries.com: Important Prosecution Filings in George Floyd Criminal Cases (Oct. 14, 2020); Court Denies Prosecution’s Motion for Temporary Protective Order in George Floyd Criminal Cases (Oct. 15, 2020).

[2] Defendant’s Notice of Motion and Motion To Admit Floyd’s May 6, 2019 Incident, State v. Chauvin, Court File No. 27-CR-20-12946 (Hennepin County District Court Oct. 16, 2020); Motion for Leave To Supplement the Spreigl Motion with an Additional Motion with an Additional Video Exhibit, State v.Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Oct. 16, 2020); Defendant’s Motion and Memorandum of Law to Allow Video Exhibits, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court Oct. 16, 2020); Order, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court Oct. 16, 2020).

[3] Court Denies Prosecution’s Motion for Temporary Protective Order in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 15, 2020); Motion and Memorandum of Law To Allow Video Exhibits, State v. Kueng, Court File No. 27-CR-20-12953 (Hennepin County District Court Oct. 16, 2020).

Court Denies Prosecution’s Motion for Temporary Protective Order in George Floyd Criminal Cases    

On October 15, as anticipated, the Media Coalition filed  its opposition to the Prosecution’s Motion for a Temporary Protective Order in the George Floyd Criminal Cases. Later that same day, the Court held a hearing on that motion.

Media Coalition’s Opposition[1]

The Media Coalition’s 12-page brief “respectfully requests that the Court, consistent with its obligations under the common law, its own rules of access, the First Amendment—and, indeed, consistent . . . with its own August 7 Order and August 11 Memorandum Opinion—immediately make the motion papers that Defendant Thomas K. Lane filed on October 12, 2020, including all video exhibits, available to the press and public and that it deny the State’s motion requesting their continued sealing. The Coalition further requests that the Court deny the State’s Motion for Order Temporarily Restricting Public Access to Motions and Exhibits.”

Hearing on the Motion[2]

At a 25-minute hearing, Judge Peter Cahill denied the Prosecution’s motion, but added he would not allow audio, video or photographs to be attached to future filings by the parties. He said the video of George Floyd’s 2019 arrest in Minneapolis “shows what basically everybody already knows: Floyd was arrested on a previous occasion.” Moreover, the Judge noted that this arrest video was potentially helpful to the prosecution and that previously he had banned evidence of Floyd’s involvement in an armed robbery in Texas before he had moved to Minneapolis.

Subsequent Developments [3]

Immediately after the hearing, Jonathan Mason, an activist with 10K Foundation, interrupted attorney Earl Gray’s interview by a reporter, to protest alleged behavior by Chauvin and to accuse the attorney of “protecting a killer.” (This Foundation’s website says, “We are helping communities preserve their freedom, justice and access to the American dream.”)

Later that same afternoon, a group of about eight protesters walked around the skyway level of the Government Center. Some were yelling, “[Expletive] Derek Chauvin.” One of them, Thomas W. Moseley, a 29-year-old from Blaine, yelled. “Kill Derek Chauvin,” and he was handcuffed, searched and taken away after deputies found a black handgun and several knives on him; he was charged with possession of a dangerous weapon, a felony.

Similar heated protests directed at the defendants and their attorneys (and damage of an attorney’s vehicle). occurred after the September 11th hearing. Thereafter these protestors’ actions were cited by one of the defendants as an additional reason (protecting the safety of the defendants and their attorneys) for transferring the case out of Hennepin County. [4]

These incidents provided additional grounds for defendants’ motions to change the venue of the cases—move them from Hennepin County District Court to another state court in a different county.

Therefore, this blog must reiterate that persons who are interested in justice for George Floyd and want the murder and manslaughter trial(s) to be held in Hennepin County, where the killing occurred, must change their tactics. Such protests merely provide evidence to the defendants’ motions to have the cases transferred to another county court in the state.

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[1] Important Prosecution’s Filings in George Floyd Criminal Cases dwkcommentaries.com (Oct. 14, 2020); Media Coalition’s Opposition to State’s Motion to Restrict Access to Defendant Lane’s October 12 Filings and State’s Motion for a “Temporary” Protective Order (Oct. 15, 2020).

[2] Olson, Judge denies prosecution’s request to seal all filings in Floyd case for at least 48 hours, StarTribune (Oct. 15, 2020).

[3] Olson, n.2; Xiong, Defense Attorney in George floyd case renews call to move ex-cops’ trial after armed protester’s arrest, StarTribune (Oct. 16, 2020).

[4] See these posts and comment to dwkcommentaries.com: Results of 9/11/20 Hearing in George Floyd Criminal Cases (Sept. 12, 2020); Additional Developments in George Floyd Criminal Cases (Oct. 4, 2020); Comment: Woman Charged for Damaging Car of Defendant’s Lawyer in George Floyd Criminal Cases (Oct. 13, 2020).

Important Prosecution Filings in George Floyd Criminal Cases

On October 12, the prosecution (the State of Minnesota) filed two important documents in the George Floyd criminal cases against four ex-Minneapolis policemen—Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao. The first is a motion to have all motions and exhibits in the case remain under seal for two business days “to permit the parties to review . . . [them] before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure.” The second is the prosecution’s memorandum in support of other evidence the State intends to offer at trial. Here is a summary of those documents.

Motion To Limit Public Access to Case Materials[1]

The prosecution’s motion to limit public access to case materials was precipitated by an October 12th motion by Earl Gray, the attorney for Defendant Thomas Lane, to include in trial evidence a video from an incident on May 6, 2019, when three other police officers were attempting to have George Floyd show his hands, stop moving around and spit out something he had put in his mouth and when Floyd cried out for his “Mama” and “Don’t shoot me, man.”

Gray in his motion for admission of this evidence apparently argued that the 2019 arrest is relevant to his client’s defense because prosecutors have presented a ‘false narrative’ by portraying Floyd as a ‘law-abiding citizen that was afraid for his life.’ Instead, Gray said, “Floyd’s behavior in the earlier arrest is ‘almost an exact replica’ of how he behaved during his fatal encounter with police a year later outside Cup Foods in south Minneapolis. . . . Floyd cried, mumbled and yelled throughout his interview with the police ,” and Gray argued that‘s how Floyd behaves under ‘the influence of a pill.’”

In response to this motion by Mr. Gray, the prosecution immediately filed the motion to have all motions and exhibits in the case remain under seal for two business days “to permit the parties to review . . . [them] before they are made available to the public and, if necessary, to notify the Court within two business days of their intent to oppose public disclosure.” If any of the parties “oppose public disclosure, the court may then request briefing and set a briefing schedule on a motion opposing public disclosure.”  In support of this motion, the prosecution cited U.S. and Minnesota Supreme Court decisions supporting such a restriction, especially where there is a risk of prejudicial pretrial publicity.

This prosecution motion is opposed by the Media Coalition, which includes the StarTribune.

On October 15, Hennepin County District Court Judge, Peter Cahill, will hold a hearing on the prosecution’s motion

Arguments for Additional Evidence[2]

On October 12th the State filed a 44-page memorandum in support of additional evidence it plans to offer at the criminal trials of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thau.

After a short Introduction, this memorandum sets forth in 12 pages a detailed “Statement of Facts” with evidentiary citations regarding “The Events of May 25, 2020” (the day that Floyd was killed). This included the following regarding the physical restraint of Floyd on the pavement:

  • At 8:11 p.m., Kueng “and Lane handcuffed Floyd’s arms behind his back. . . From this moment on, and for all of the remaining minutes of his life, Floyd’s hands remained handcuffed.” (P.3.)
  • “At 8:19:14-45 p.m., Chauvin, Kueng, and Lane pinned Floyd to the pavement face-down.” (p. 7.)
  • At 8:23:58—8:24:00 p.m., “Floyd then said what would be his final words: ‘I can’t breathe.’ . . .He soon fell silent and lost consciousness.” (P. 9.)
  • “But even after Floyd went limp, Chauvin continued to restrain Floyd’s neck and restraining Floyd’s left hand. Kueng and Lane continued to restrain Floyd’s back and legs.” (P. 9.)
  • At 8:25:20-31 p.m., the “body camera videos appear to show that Floyd’s shallow breaths stopped.” (P. 10.)
  • At 8:25:40-8:26:00 p.m., the “officers maintained their positions—Chauvin on Floyd’s neck, Kueng on his back, Lane on his legs, and Thao standing guard.” (P. 11)
  • At 8:26:12-18 p.m., after Kueng reported he could not find a Floyd pulse and after Floyd did not respond to Chauvin’s squeezing Floyd’s fingers, “Chauvin continued to kneel on Floyd’s neck.” (P. 11.)
  • At 8:27:36-38 p.m., Chauvin “continued to press his knee into the back of Floyd’s neck.” (P. 12.)
  • At 8:27:43-50 p.m., “while emergency personnel leaned down and attempted to check Floyd’s neck for a pulse, Chauvin did not remove his knee from Floyd’s neck.” (P. 12.)
  • At 8:28:45 p.m., “when the stretcher was ready, Chauvin finally removed his knee from Floyd’s neck.” (P. 12.)
  • “All told, Floyd was pinned to the ground—with Chauvin’s knee pressing into his neck, Kueng and Lane atop his back and legs, and Thao standing watch nearby—for approximately nine minutes.” (Pp. 12-13.)

The bulk of this memorandum was the 28 pages of the “Argument” setting forth why the State’s “evidence of 18 prior incidents involving Defendants Chauvin, Kueng, and Thao” Is admissible. (Pp. 15-43.)

Conclusion

EsarlWe now wait to see what happens at the October 15th hearing and how Judge  Cahill resolves these motions. (By the way, another October 12th filing by the prosecution was a supplemental argument for enhanced sentences of these defendants.[3)

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[1] State’s Motion for Order Temporarily Restricting Public Access to Motions and Exhibits, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2000); Olson, Prosecutors seek privacy order to keep details of George Floyd’s 2019 arrest from public view, StarTribune (Oct. 13, 2020)  Gray’s motion is not available on the public website of filings in the Lane case, but the StarTribune obtained a copy since it is a member of the Media Coalition and thus a party in an ongoing dispute over what documents are public in the case. (See Gag Order in George Floyd Murder Cases, dwkcommentaries.com (July 9, 2020); Media Coalition Asks Court To Release BodyCam Footage of George Floyd Killing, dwkcommentaries.com (July 14, 2020).)

[2] State’s Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court file No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2020); Mannix, Prosecutor: Ex-officers pinned George Floyd for 9 &1/2 minutes, including after they could not find a pulse, StarTribune (Oct. 14, 2020). See also Revised Length of Time for Minneapolis Police Restraint of George Floyd, dwkcommentaries.com (June 18, 2020).

[3] Prosecution’s Supplemental Argument for Enhanced Sentences for Defendants in George Floyd Criminal Cases, dwkcommentaries.com (Oct. 13, 2020).

Prosecution’s Supplemental Argument for Enhanced Sentences for Defendants in George Floyd Criminal Cases

On October 12, the State of Minnesota submitted additional arguments for enhanced sentences for the four former policemen in the event they are found guilty of murder and/or manslaughter in the killing of George Floyd. [1]

Background for This Submission[2]

On August 28, the State submitted its Notice of Intent To Seek an Upward Sentencing Departure in all four of these criminal cases. It alleged that Floyd was particularly vulnerable and was treated with particular cruelty by Chauvin, that Chauvin abused his position of authority, committed the crime as part of a group of three or more offenders who actively participated in the crime and in the presence of multiple children. (Similar assertions were made in notices in the other three criminal cases.)

This notice in the Chauvin case was submitted in accordance with the U.S. Supreme Court’s decision in Blakely v. Washington, 542 U.S. 2996 (2004), which held that the defendant’s Sixth Amendment right to a jury trial can be violated any time the court imposes a sentence greater than that called for in the guidelines, even when the sentence imposed is below the maximum punishment permitted by the legislature.

This submission by the prosecution was argued at the September 11, 2020, hearing before Hennepin County District Court Judge Peter Cahill. Assistant Attorney General Matthew Frank argued that Floyd was particularly vulnerable because he was handcuffed and pinned to the ground. Judge Cahill expressed some skepticism of this point by asking whether what happens during an encounter qualifies for this purpose.

In its Notice of Intent To Offer Other Evidence of 9/10/20, the State said it intended to offer evidence of Chauvin’s eight prior instances of use of excessive force, including use of neck and upper body restraints.  In four of those, Chauvin allegedly used them “beyond the point when such force was needed under the circumstance,” an indication of his pattern, including his restraint of Floyd.

Details of Supplemental Submission

 The supplemental submission answered “yes” to two questions posed by the Court at that hearing.

  1. “Whether the particular vulnerability of the victim justifies an upward sentencing departure when the defendants are responsible for creating the victim’s vulnerability?”

Under Minnesota Sentencing Guidelines 2.D.3.b(1), “When a defendant commits a crime against a victim who was “particularly vulnerable due to . . . reduced physical or mental capacity, and the offender knew or should have known of this vulnerability,” an upward sentencing departure is permissible.”

That standard is met in the current cases because the defendants “handcuffed Floyd’s arms behind his back, pressed him chest-down into the pavement, and rendered him unconscious. As a result, Floyd was “particularly vulnerable” when Defendants committed the crime, and Defendants knew or should have known as much.”

Moreover, the Minnesota Court of Appeals in six cited cases has “upheld the application of this enhancement where the victim became “particularly vulnerable” as a result of a defendant’s actions.”

  1. Whether a defendant’s abuse of a 27-CR-20-12646 Filed in District Court State of Minnesota 10/12/2020 3:09 PM 2 position of authority supports an upward sentencing departure even if there is not a pre-existing relationship of trust between the defendant and the victim?”

The Minnesota Supreme Court and Court of Appeals in cited cases have upheld upward sentencing departure where there are “power imbalances” even when there is no pre-existing relationship between the perpetrator and the victim “so long as the defendant holds either a’a position of trust or [a] position of authority.”

Here, “as police officers in full uniform, Defendants had a ‘defined relationship’ of authority over Floyd, and were ‘in a position to dominate and control’ him. . . . That ‘position of control” ’allowed them to handcuff and restrain Floyd, and therefore to ‘manipulate the circumstances and commit the crime.’”

Reaction to This Submission

Earl Gray, Lane’s defense attorney, said the request for an upward sentencing departure is an attempt to poison the potential pool of jurors. “They first have to get a conviction,” he said. The other defense counsel had no comments or could not be reached.

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[1] Supplemental Brief in Support of Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Oct. 12, 2020); Olson, Prosecutors want stiff sentences for ex-cops charged in George Floyd’s killing, StarTribune (Oct. 13, 2020).

[2] State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court Aug. 28, 2020), State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Lane, Court File No. 27-CR-20-12951 (Hennepin County District Court Aug. 28, 2020); State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Kueng, Court File No. 27-CR-20-12953(Hennepin County District Court Aug. 28, 2020); State’s Notice of Intent To Seek an Upward Sentencing Departure, State v. Thao, Court File No. 27-CR-20-12949 (Hennepin County District Court Aug. 28, 2020).  See also Preview of the 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 10, 2020); Results of 9/11/20 Hearing in George Floyd Criminal Cases, dwkcommentaries.com (Sept. 12, 2020).

 

New U.S. Sanctions Against Cuba

The U.S. recently has announced additional sanctions against Cuba. Here is a summary of those measures.

 U.S.Sanctions Against Certain Cuban Hotels, Cigars and Alcohol[1]

On September 23 President Trump announced that the “Treasury Department will prohibit U.S. travelers from staying at properties owned by the Cuban government. We’re also further restricting the importation of Cuban alcohol and Cuban tobacco. These actions will ensure that U.S. dollars do not fund the Cuban regime and go directly to the Cuban people.”

Treasury Secretary Mnuchin said, “The Cuban regime has been redirecting revenue from authorized U.S. travel for its own benefit, often at the expense of the Cuban people. This Administration is committed to denying Cuba’s oppressive regime access to revenues used to fund their malign activities, both at home and abroad.”

A negative assessment of this move was made by Lawrence Ward, a partner in the international law firm Dorsey & Whitney, who said Trump’s action will make it nearly impossible for Americans to visit Cuba since the government owns or controls nearly all hotels. “Certainly, these new sanctions will have some minor impact on the Cuban government and Cuba’s economy but there’s a fair argument that the actions are more symbolic and political given that the United States stands nearly alone in its sanctions as to Cuba.”

Enrique Gutierrez, a spokesman for the Democratic Party said in an email, “This is a desperate and hypocritical attempt by Trump to pander to Cuban-American voters in Florida. American citizens are already banned from traveling to Cuba because of the coronavirus.” Mr. Trump was “using our foreign policy for his own political gain.”

U.S. Sanctions Against Cuban Debit Cards[2]

On September 28, the State Department added American International Services (AIS), a financial institution, to the Cuba Restricted List. According to Secretary of State Michael Pompeo, the stated reason for this action was AIS’ allegedly being “controlled by the Cuban military that processes remittances sent to the Cuban people” and its charging “fees and manipulat[ing] the remittance and foreign currency market as part of the regime’s schemes to make money and support its repressive apparatus. The profits earned from these operations disproportionately benefit the Cuban military, furthering repression of the Cuban people and funding Cuba’s meddling in Venezuela.”

The Secretary added, “Adding AIS to the Cuba Restricted List furthers the Administration’s goal of preventing the Cuban military from controlling and benefiting from the flow of remittances that should instead benefit the Cuban people.  The people should be able to receive funds from their family abroad without having to line the pockets of their oppressors.” Therefore, the Secretary urged “anyone who sends remittances to family in Cuba to use means other than Cuban government-controlled remittance entities.”

This move against AIS hurts ordinary Cubans who receive remittances in hard currencies from families in the U.S. and elsewhere through AIS that are used to buy food in government-owned retail grocery stores. Bruno Rodriguez, Cuba’s foreign minister, said in a tweet, “it is a maneuver aimed at damaging the Cuban people and the family ties between both nations.”

List of Cuba Prohibited Accommodations and Entities [3]

In addition, on September 28, the Department published its initial list of Cuba Prohibited Accommodations. This is a “list of properties in Cuba owned or controlled by the Cuban government, a prohibited official of the Government of Cuba, as defined in 31 CFR § 515.337, a prohibited member of the Cuban Communist Party, as defined in 31 CFR § 515.338, a close relative, as defined in 31 CFR § 515.339, of a prohibited official of the Government of Cuba, or a close relative of a prohibited member of the Cuban Communist Party.” The list is by cities and towns that not in alphabetical order so it should be carefully examined by any U.S. citizen traveling to Cuba.

On September 29, the Department published the List of Restricted Entities and Subentities Associated with Cuba. This is a “list of entities and subentities under the control of, or acting for or on behalf of, the Cuban military, intelligence, or security services or personnel with which direct financial transactions would disproportionately benefit such services or personnel at the expense of the Cuban people or private enterprise in Cuba.” U.S. nationals are prohibited from having “direct financial transactions with these entities.”

Another Cuban “Blocked Person”[4]

On September 30 the Department added Luis Alberto Rodriguez Lopez-Calleja to the U.S. list of Specially Designated Nationals and Blocked Persons, which will block all transactions with “all assets, property and interests of property of Mr. Lopez-Calleja that are subject to U.S. jurisdiction, including within the possession or control of U.S. persons.”   The stated reason for this action was his being the head of the Cuban military-owned conglomerate Grupo de Administración Empresarial S.A. (GAESA), which allegedly uses its revenue “to oppress the Cuban people and to fund Cuba’s parasitic, colonial domination of Venezuela.  He also is the son-in-law of Raul Castro.

Other Reactions [5]

 These new sanctions might seem inconsequential to someone in the U.S. But they are especially mean-spirited when directed at the much smaller and weaker island whose economy is suffering from the total collapse of foreign tourism and mismanagement and whose food is sold at high prices in government-operated stores only for U.S. Dollars as a way for the government to obtain Dollars it needs for other purposes.

Elijah Love, a commentator in the private Diario de Cuba and generally supportive of U.S. restrictions on Cuba, says, “Unfortunately, private entrepreneurs have been especially harmed, and although the US government wants the sanctions applied to military companies and State Security to leave room for private entrepreneurs to occupy the place they deserve, it does not seem that this be the case.”

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[1] White House, Remarks by President Trump Honoring Bay of Pigs Veterans (Sept. 23, 2020); Treasury Dep’t, Office of Foreign Asset Control, Cuban Assets Control Regulations, 85 Fed. Reg. 60068-72 (Sept. 24, 3030)(new prohibition on lodging and related transactions at certain Cuban properties; restrictions on U.S. imports of Cuban alcohol and tobacco products; ends authorization of attendance or organization of professional meetings in Cuba and participation or organization of certain public performances , clinics , workshops in Cuba); Yeginsu, Trump Administration Adds to US Travel Restrictions in Cuba, N.Y. Times (Sept. 24, 2020); Superville, Trump tightens Cuba sanctions as he woos Cuban-American vote, Wash. Post (Sept. 23, 2020).

[2] State Dep’t, Addition to the Cuba Restricted List (Sept. 28. 2020); Rodriguez, U.S. adds popular Cuban debit card to restricted list, Wash. Post (Sept. 28, 2020).

[3]  State Dep’t, Cuba Prohibited Accommodations List Initial Publication (Sept. 28, 2020);  State Dep’t, List of Restricted Entities and Subentities Associated with Cuba Effective September 29, 2020 (Sept. 29, 2020)

[4] State Dep’t, Press Statement (Secretary Michael Pompeo): Addition to the Specially Designated Nationals and Blocked Persons List (Sept. 30, 2020);Lee, US imposes sanctions on Cuba’s Raul Castro’s son-in-law, Wash. Post (Sept. 30, 2020)

[5]  Augustin & Robles, Cuba’s Economy Was Hurting. The Pandemic Brought a Food Crisis, N.Y. Times (Sept. 20, 2020); Love, US sanctions on the Cuban economy create opportunities, but also risks, Diario de Cuba (Sept.  29, 2020).

 

Court Permits Chauvin To Live Out-of-State on Bail 

On October 8, Hennepin County District Court Judge Peter Cahill, based upon in camera evidence supporting safety concerns about Defendant Derek Chauvin, amended the conditions of his release on bail allowing him to live outside the State of Minnesota.[1]The key provisions of this Order are the following:

  • “2. Defendant shall establish residency somewhere in the State of Minnesota or a contiguous state [Wisconsin, Iowa, South Dakota and North Dakota] as soon as possible and immediately report that address to the conditional release officer (CRO)assigned by the Minnesota Department of Corrections. The CRO may share that address internally as necessary within the Minnesota Department of Corrections, and shall also share that address with the Hennepin County Sheriff’s Office Court Security Division captain, prosecutors, and defense counsel. The CRO shall also share the address with the local police department and county sheriff’’ office having jurisdiction over Defendant’s residence address, with a copy of this Order and an instruction that the address be kept confidential. Anyone with knowledge of the Defendant’s residence address shall keep it confidential, except that information may be shared within agencies on a need-to-know basis.”
  • “5. Defendant shall obtain a mobile phone which is to be operational and on his person at all times. Defendant shall maintain cellular service at all times so that his CRO o other representatives of the Minnesota Department of corrections may contact him at any time. Defendant shall answer all calls from the Minnesota Department of Corrections.”
  • “6. Defendant shall sign four copies of a waiver of extradition and provide the signed original documents to the Office of the Minnesota Attorney General.”
  • “7. Defendant shall surrender any passports to his CRO as soon as possible.”
  • “8/ Any requests for warrants for conditional release violations shall be directed to the undersigned judge with copies to the prosecutors and defense counsel.”

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[1]  Order Amending Conditions of Release, State v. Chauvin, Dist Ct. File 27-CR-20-12646 (Hennepin County District Court Oct.9, 2020);  Browning, City safety concern, judge lets Derek Chauvin live outside Minnesota pending his trial in killing of George Floyd, StarTribune (Oct. 9, 2020).

 

A Moving Biography of George Floyd

A moving short biography of George Floyd, based on intensive research, has been published by the Washington Post.[1] Here is a summary.

Floyd’s Ancestors

“Floyd’s great-great-grandfather, Hillery Thomas Stewart Sr., spent the first eight years of his life enslaved in North Carolina, where tobacco fields financed American dynasties — and perpetuated inequality — that endured from the 19th century until today.”

“Stewart was freed in the mid-1860s, the result of a bloody Civil War that led to the emancipation of nearly 4 million Black Americans who had toiled under a brutal system of chattel slavery.”

“Despite having no formal education — teaching enslaved people to read and write was deemed illegal by the North Carolina General Assembly in 1830 — Stewart acquired 500 acres of land by the time he reached his 20s. . . .[But] Stewart lost it all when White farmers seized the land, using legally questionable maneuvers that were common in the postwar South.” Floyd’s aunt, Angela Harrison, who has maintained certain family records, said, “The land was stolen from him. He was ‘targeted’ by White usurpers due to his relative wealth. ‘They used to call him the rich nigger.’”

“Floyd’s grandparents were North Carolina sharecroppers, working farms owned by White landowners in exchange for a portion of the crop. They too fell victim to state-sanctioned discrimination and wage theft, according to Harrelson and other family members. As they raised their 14 children — including Floyd’s mother, Larcenia — they were repeatedly forced out of the shacks they rented with their labor, and regularly cheated out of their pay.”

Although they were “unable to bequeath financial wealth to their descendants, . . .[they] passed down an ethic of hard work, a reverence for education and a deep familial bond borne out of shared perseverance. . . . Larcenia and her 12 surviving siblings all graduated from high school, a source of pride for their sharecropper parents who never attended.”

The grandparents also passed down an “unshakable fear of White exploitation, and a skepticism toward a system that had treated the family’s dark skin as a permission slip for oppression.”

Floyd’s Early Years in Houston

“Floyd was born in Fayetteville, N.C., in 1973, a time when Whites-only service at restaurants and segregated seating in movie theaters were fresh wounds.”

In 1977 his mother, a single mom, and her children moved to Houston, where they lived “in a predominantly Black Houston neighborhood where White flight, underinvestment and mass incarceration fostered a crucible of inequality.”

“In the crumbling Houston public housing complex where Floyd grew up — known as The Bricks’ — kids were accustomed to police jumping from cars to harass and detain them. His underfunded and underperforming public high school in the city’s historically Black Third Ward left him unprepared for college.”

According to his younger brother, their mother “used to always tell us that growing up in America [as a Black man], you already have two strikes. And you’re going to have to work three times as hard as everybody else, if you want to make it in this world.”

“Schools  remained deeply unequal as Floyd moved through predominantly Black classrooms in the 1980s and early 1990s. . . . By the time Floyd left high school in 1993, he wasn’t academically prepared to go to college.”

“But his athletic skills earned him a place at a two-year program in South Florida before he transferred closer to home — to Texas A&M University-Kingsville, a small, mostly Latino school known as a pipeline to the NFL. Big Floyd was always talking about going to the [NFL] league. . . . Floyd, a tight end, went to practice every day, but he wasn’t making the grades or completing the credits that would have allowed him to get on the field. . . . Floyd’s time in college ended with neither a degree nor a draft into professional sports. With his two planned routes out of Third Ward blocked, he moved back to Cuney Homes in 1997.”

Troubled Years in Houston

“It didn’t take much time before he was in trouble with the law.”

“Police . . . arrested him in August 1997 for delivering less than a gram of cocaine. A judge sentenced him to six months in jail. It was the first of at least nine arrests in Harris County over the course of a decade, mostly for low-level drug crimes or theft.”

In 2004 he also was convicted for selling less than a gram of cocaine, which now is under review because the arresting officer has been charged with regularly falsifying evidence in drug cases.

“The most serious charge that Floyd faced was in 2007, for aggravated robbery with a deadly weapon. Prosecutors said the then-33-year-old [Floyd] and four others forced their way into a private home and that Floyd had held a woman at gunpoint while others ransacked the place, looking for drugs and money. After a plea deal, Floyd would spend four years at a privately run prison nearly three hours northwest of Houston. There, he largely languished, without access to vocational training or substance abuse treatment. Once jovial and confident, Floyd left prison deflated, introspective and terrified at the prospect of being locked up again, according to family members and friends.”

“Throughout his lifetime, Floyd’s identity as a Black man exposed him to a gauntlet of injustices that derailed, diminished and ultimately destroyed him.” His life, in short, “underscores how systemic racism has calcified within many of America’s institutions, creating sharply disparate outcomes in housing, education, the economy, law enforcement and health care.”

.“Floyd spent a quarter of his adult life incarcerated, cycling through a criminal justice system that studies show unjustly targets Blacks. His longest stint was at a private prison in a predominantly White town where the jail housing mostly minority inmates generated a third of the town’s budget.”

“Floyd made many mistakes of his own doing. His choices landed him in jail on drug and robbery charges, while also leaving him without a college degree and with limited career prospects. He acknowledged many of his poor decisions and tried to warn others against making them too. But for him, each misstep further narrowed his opportunities.”

“In a video he posted on social media aimed at convincing young people in his neighborhood to put away their guns, he said, ‘I got my shortcomings and my flaws. I ain’t better than nobody else.’”

“When Floyd stumbled, he fell far, ultimately battling drugs, hypertension, claustrophobia and depression.”

Floyd’s Move to Minneapolis

In 2017, at the urging of a Houston pastor, Floyd left Houston to move to Minneapolis in an attempt to leave his troubles behind him. “After arriving in Minneapolis, he enrolled in a rehabilitation program, began training to become a commercial truck driver and took up jobs working security at the Salvation Army and a Latin nightclub.”

“Floyd kept a list of goals in his house to make sure he was living a meaningful life. ‘Staying clean,’ was one of them.”

In Spring 2020 he “contracted the coronavirus and lost his security job when the pandemic forced the nightclub to close. Over Memorial Day weekend he felt better, and on May 25th told a friend he was going to run out for cigarettes and promised to call later.

Instead he was killed.

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[1] Olorunnipa & Witte, George Floyd’s America: Born with two strikes, Wash. Post (Oct.8, 2020).

 

Chauvin Out of Prison on Bail 

On October 4, Chauvin posted a $1 million bond and was released from Minnesota state prison on charges of murder and manslaughter of George Floyd on May 25th in Minneapolis. The conditions of his release include “that he remain law abiding, that he not have any contact with Floyd’s family, that he not work in law enforcement or security, that he surrender any firearms and licenses to carry, that he remain in Minnesota under court supervision, and that he sign a waiver of extradition upon his release.”  His three co-defendants—Thomas Lane, J. Alexander Kueng and Tao Thou—already had  posted bond (in smaller amounts) and had been released from jail. [1]

As reported in a comment to the earlier post about Chauvin and his wife being charged with Minnesota tax crimes, on September 8, Chauvin appeared remotely from state prison at a hearing on the state tax evasion charges before Judge Sheridan Hawley, Washington County District Court, Stillwater, Minnesota.[2]

The Judge ordered that if Chauvin were to post bail and be released from state prison on his charges of murder and manslaughter of George Floyd, he would not be required to post monetary bail on the tax evasion charges, but he would have to comply with standard conditions, including attending all future court dates and remain law-abiding. The Judge also set the next hearing in this case for October 30.

Protestors[3]

That same night about 300 people marched peacefully from the site of Floyd’s killing (East 38th Street and Chicago Avenue) a few blocks north towards downtown and then back. At one point they stopped to chant, “No justice, no peace.”

Later, 34 people who had veered away from the earlier protest were arrested for unlawful assembly near the Fifth Precinct police headquarters at 3101 Nicollet Av. by officers from the state Department of Natural Resources and the State Patrol, the Minnesota Department of Public Safety disclosed Thursday morning.

These law enforcement officers had been activated out of an abundance of caution by Minnesota Governor Tim Walz at the request of Minneapolis Mayor Jacob Frey. But there were no large or violent protests.

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[1]  Xiong, Chauvin posts $1 million bond and is released pending trial for murder in the killing of George Floyd, StarTribune (Oct. 7, 2020); Bailey, Former Minneapolis police officer Derek Chauvin released on bond as he faces trial in George Floyd’s death, Wash. Post (Oct. 4 , 2020); Bogel-Burroughs, Derek Chauvin, Ex-Officer Charged in George Floyd’s Death, Released on Bail, N.Y. Times (Oct. 4, 2020).

[2] Olson, Chauvin appears in court on tax evasion charges, StarTribune (Sept. 9, 2020): Comment: Chauvin Appears in State Court on Tax Evasion Charges (Oct. 4, 2020) to Chauvin and Wife Now Charged with Minnesota Tax Crimes, dwkcommentaries.com (July 22, 2020).

[3] Xiong, Derek Chauvin posts $1 million bond and is released pending trial for murder in the killing of George Floyd, StarTribune (Oct. 8, 2020); Simons, Dozens of protestors arrested during faceoff with law enforcement in Minneapolis, StarTribune (Oct. 8, 2020); Skiuzacek, Walz activates Minnesota National Guard to help keep peace in Twin Cities, 5 Eyewitness News (Oct. 7, 2020).

 

Pandemic Journal (# 31): What Will Be the New Normal?

The COVID-19 Pandemic has been so long and so thoroughly disruptive to what used to be our “normal” lives, we wonder what life will be like after the pandemic is over. Will it be a return to what we thought was “normal.”? I think not. We will start to engage in a new way of life with details to be negotiated among all people and institutions.

This was the point recently made by Fareed Zakaria.[1]

Zakaria’s Vision for the New World

The world that is being ushered in as a consequence of the covid-19 pandemic is new and scary. The health crisis has accelerated a number of forces that were already gathering steam. Most fundamentally, it is now blindingly clear that human development as it is happening now is creating ever-greater risks. The backlash from nature is all around us, from wildfires to hurricanes to pandemics, of which covid-19 may simply be the first in a series. The pandemic has intensified other trends, too. For demographic and other reasons, countries will likely see more sluggish economic growth. Inequality will get worse, as the big get bigger in every sphere. Machine learning is moving so fast that, for the first time in history, human beings might lose control over their own creations. Nations are becoming more parochial, their domestic politics more isolationist. The United States and China are headed toward a bitter and prolonged confrontation.” (Emphases added.)

“It is a dangerous moment. But it is also in times like these that we can shape and alter such trends. To complete the story of our future, we must add in human agency. People can choose which direction they want to push themselves, their societies and their world. In fact, we have more leeway now. In most eras, history proceeds along a set path and change is difficult. But the novel coronavirus has upended society. People are disoriented. Things are already changing and, in that atmosphere, further change becomes easier than ever. . . .” (Emphases added.)

“We could continue with business as usual and risk cascading crises from climate change and new pandemics. Or we could get serious about a more sustainable strategy for growth. We could turn inward and embrace nationalism and self-interest, or we could view these challenges — which cross all borders — as a spur to global cooperation and action. We have many futures in front of us. . . .” (Emphases added.)

The current pandemic presents . . . choices. We could settle into a world of slow growth, increasing natural dangers and rising inequality — and continue with business as usual. Or we could choose to act forcefully, using the vast capacity of government to make massive new investments to equip people with the skills and security they need in an age of bewildering change. We could build a 21st-century infrastructure, putting to work many of those most threatened by new technologies. We could curb carbon emissions simply by placing a price on them that reflects their true cost. And we could recognize that, along with dynamism and growth, we need resilience and security — or else the next crisis could be the last. . . .” (Emphasis added.)

The . . . tension between integration and isolation can be seen throughout the world. The pandemic is leading countries to look inward. But enlightened leaders will recognize that the only real solution to problems such as pandemics — and climate change and cyberwar — is to look outward, toward better cooperation. The solution to a badly funded and weak World Health Organization is not to withdraw from it in the hope that it withers away, but rather to fund it better and give it more autonomy so that it could stand up to China — or the United States — if a health emergency requires it. No single country can organize the entire world anymore. None wants to. That leaves only the possibilities of chaos, cold war, or cooperation.” (Emphasis added.)

“It is true, as the critics charge, that real international collaboration requires some element of collective decision-making. While it sounds sinister to some ears, it is, in fact, what countries do all the time. It is the mechanism by which we regulate everything from international telephone calls to air travel to trade and intellectual property to the emission of chlorofluorocarbons. There is no global “one world government,” and there never will be — it is just a phrase designed to scare people into imagining a secret army descending on them in black helicopters. What actually exists, and what we need more of, is global governance, agreements among sovereign nations to work together to solve common problems. It shouldn’t be so hard. Cooperation is one of the most fundamental traits in human beings, one that many biologists believe is at the root of our survival over the millennia. If we are to survive well into the future, cooperation will surely help us more than conflict.” (Emphases added.)

The imperative for cooperation is nowhere more evident than in the relationship between the world’s two greatest powers, the United States and China. We are entering a bipolar world — characterized by a reality in which two countries are simply head-and-shoulders above the rest in hard power. . . .” (Emphasis added.)

“The pandemic has made so many — nations and individuals — turn inward and become selfish. But an even larger crisis had the opposite effect on the greatest statesmen of the age. Twenty years after D-Day, CBS News invited the former supreme commander of the Allied operations, Dwight D. Eisenhower, to revisit the beaches of Normandy with Walter Cronkite and reflect. Eisenhower had seen the worst of humanity — the German Wehrmacht’s brutal fight to the finish — and yet, he had come out of that experience determined to try cooperation. As they sat overlooking the rows of graves in Normandy, Eisenhower said to Cronkite, “These people gave us a chance, and they bought time for us, so that we can do better than we have before. So every time I come back to these beaches, or any day when I think about that day 20 years ago now, I say once more, we must find some way to work to peace, and really to gain an eternal peace for this world.” (Emphasis added.)

“So, too, in our times, this ugly pandemic has created the possibility for optimism, change and reform. It has opened a path to a new world. It’s ours to take that opportunity or to squander it. Nothing is written [beforehand about what we should do].” (Emphasis added.)

Reactions

I concur in the need for more international cooperation on a multitude of issues.

In addition, the pandemic has shown the many deficiencies in the U.S. Everyone needs basic health insurance that is not tied to a specific employer which means if an individual is fired or laid off due to an economic downturn or another pandemic, the individual loses health insurance. We need a huge revision of the federal income tax laws to eliminate loopholes and other provisions that benefit only the super wealthy. We need to do something about income and wealth inequality. We need to have one federal election system that guarantees and enforces the right to vote for every U.S. citizen who is over 18 years of age, stops gerrymandering, and eliminates the electoral college and the equal representation of states regardless of population in the U.S. Senate. We need to eliminate racism and sexism in our institutions and society. Those are starters for a new normal.

An invitation is extended to readers of this blog to express their desires for a “new normal” after we get through this pandemic.

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[1] Zakaria, The pandemic upended the present. But it’s given us the chance to remake the future, Wash. Post (Oct. 6, 2020). This article is adapted from Zakaria’s new book, Ten Lessons for a Post-Pandemic World (W.W. Norton & Co. 2020).