An Aristocracy Anyone?

So the U.S. Supreme Court decides that individuals can give any amount they want to any candidate they want.  Critics decry corruption.  But a more benevolent take would have us moving consciously toward an Aristocracy — a rule by the few for the sake of all.

If the rich and powerful few fund and back campaigns only for their selfish interests, then we’d have an oligarchy.  But, hoping against hope, if they truly keep the common good in view, we’ll have Aristotle’s preferred Constitutional type.

American Hustle: Appearance & Reality

American Hustle opens, with a classic scene of Irving affixing a hairpiece to his bald scalp and then constructing an elaborate comb over.  We sense from the opening we are in the presence of someone who makes a great effort carefully to construct a false appearance.           We are not who we appear to be.  Alone with himself, before the bathroom mirror of the Plaza Hotel, Irving passes into a monitoring room where unseen others are in front of screens monitoring others.  Then into the monitered room with a suitcase of money shoved toward an unsuspecting Mayor.

Western culture has wrestled with the conflict between appearance and reality at least since Plato squared off against the Sophists.  Plato held firm, and so do we,  to essential truth beneath the welter of appearances, although we might only indistinctly infer reality from the flickering shadows it cast on the walls of our cave.  The sophists, however insisted that reality was appearance  — whatever a person believes is true for him, or her.  “Man is the measure of all things,” proclaimed Protagoras, the first and greatest of the Sophists. ”

American Hustle, hustling itself often requires the convincing creation of false appearances.  Richey poses as a person who can get loans, or as a dealer in stolen art.  Really he’s a con artist.  “I became a con artist, for real” Irving as narrator declares with delicious irony.  A con artist for real.  A little like declaring:  “This statement is false.”  If it is false, then it’s true, but it’s true only if it’s false.  American Hustle portrays a world where appearance and reality shift, conflict, and taunt us to tell which is which.

So Irving’s hustle is based on his false appearance.  But Richey, the FBI undercover agent posing as an unsuspecting businessman desperate for a loan, also creates a false appearance.  Undercover operations, government sponsored stings and scams require phony worlds, carefully constructed.  Only the agent and his supervisors, know what’s real.  Or do they?  I recall vividly, as a special prosecutor, sending undercover agents out in the field to play their parts, and feeling a smug superiority as I watched the criminals scurry in my carefully constructed and completely phony world.

We’re never quite sure in American Hustle until the end, who or what is for real.   Roles reverse, scenes that seemed to have one meaning on first viewing, when we’re carried along by the story, on second and third reviewing and reconsidering, take on a completely different reality and a very different meaning.  Sydney, a midwestern stripper who exposed herself nightly, becomes Edith Greensley, a London aristocratic with royal banking connections.  “My dream,” Sydney tells us, “more than anything was to become anyone else other than who I was.”

Is Sydney’s allegiance and love shifting from Irving, the con artist, to Richey the FBI agent with whom they’re forced to cooperate.  Or is it all an act?  “Maybe I do like him.  Maybe I do like him a lot,” Sydney warns Irving.  Who is conning whom?  Who has the upper hand in the struggle between Irving and the FBI?

“People believe what they want to believe,” Irving warns, as he points to a fake Rembrandt hanging on a museum wall.  “The guy who made this was so good that he’s made it real to everybody.  Now who’s the master — the painter or the forger?

Is there any reality beneath the appearance?  When it comes to right and wrong, to genuine goodness?

And then there’s the question of whether goodness itself can be real? “It’s all good,” purrs Teleggio, a mafia killer played with a quiet menace that Robert DeNiro captures uniquely in his cameo role.  “I just hope the other part of this is all good.  And real.  Because we’re real.  You know that.  You deal with us, we’re a real organization.”

We feel the real threat behind that warning.  So evil can be real, although good may be apparent.

The film itself as a film, a commercial product, mocks itself, and our reliance on historical truth:  It begins by declaring “Some of this is true,” and ends after the credits with the standard disclaimer:  “This is a work of fiction.  The characters, incidents and locations portrayed . . . are fictitious, and any similarity to or identification with the locations, name, character, or history of any person, product or entity is entirely coincidental and unintentional.”

Is nothing real?   How about love?  That’s the most uplifting Platonic spine of this fine film that may have won no Academy awards but deserves serious and sustained appreciation, must be the relationship between Irving and Sydney.   But that’s for the next post.

American Hustle: Entrapment

Where to start? I guess at the beginning, in the Garden of Eden, where the snake, an agent of the Sovereign, convinces Eve to violate the Law and eat the apple in order to appreciate and enjoy a life that the Sovereign had prohibited. So Eve plucked the apple, passed it to Adam and they ate.

But the garden was wired.

An angry Sovereign confronted Adam, demanding “What have you done?” And Adam, in classic heroic male fashion, instantly cooperated and gave up his supplier and beloved: “The woman that thou gavest to be with me, she gave me the apple and I did eat.”

So the Sovereign confronted Eve. And her reply: “The Serpeant beguiled me and I did eat.” This, the first entrapment defense of record, failed miserably. Adam and Eve were expelled from the Garden, Adam was condemned to toil painfully, Eve to suffer the pains of childbirth, and all of us condemned to die.

Fast forward to American Hustle. Irving, an expert con man, with a carefully constructed persona, falls for Sidney, a woman scratching out a life for herself who joins Irving in scamming people out of finders fees for loans they have no intention of producing. Richey, an FBI agent, investigating the fraudulent scheme by posing as a man in need of a loan, busts Sidney.

But Sidney doesn’t give up Irving. She writhes alone in a cell. Nor does Richey abandon Sidney. Together they agree to work off their case and reveal corrupt schemes of colleagues. . .

After Eden, the entrapment defense rarely succeeded. Until Sorrells. It was during Prohibition. A federal undercover agent posing as a tourist, struck up conversation with a local. The agent “discovered” they had both served in World War I, and exchanged war stories. Would his newfound buddy get him some booze. Initially, the target refused. More war stories, a new friendship began to bud. Booze? Declined. Finally the unsuspecting target, Sorrells, feeling sorry for his new “friend” offered him some alcohol.


The United States Supreme Court unanimously threw out the conviction, agreeing there was entrapment, but split over why. The majority of the Court would focus us on the defendant himself. Was he predisposed to commit the crime? Was he ready and willing, and only lacked the opportunity which the Government supplied? Measured by that standard, there was no evidence Sorrells was predisposed. The Government had manufactured a criminal. And that person was entrapped.

But Irving, the main character and narrator of American Hustle routinely swindled targets out of finders fees for loans he had no intention of producing. And Sidney, his new found colleague in crime, posing as Edith, a British aristocrat with London banking connections, had elevated Irv’s swindle to a higher level.

Richey the government agent had clearly not created any criminals. He had simply revealed ongoing criminality. Under the U.S. Supreme Court’s majority view, neither Richey nor Edith were even arguably entrapped.

Mayor Carmine Polito, however, was a more difficult case. But that’s for a future chapter.

American Hustle

If you haven’t yet seen American Hustle but you intend to, either before or after the Academy Awards this coming Sunday, do not read this series of posts — yet. They may well ruin this movie for you. On the other hand, if you have seen it once, or think you’ve seen it, I hope to convince you in these next few blog posts that you never really saw this great film — you can’t have. Only when you already know the whole story, and watch the characters struggle to release themselves from their respective binds — only then can you begin to really appreciate American Hustle, this time for the first time.

The well-regarded film critic Jeffrey Lyons recently rejected American Hustle for “best picture” by declaring that he had long since lost interest in ABSCAM. But that comment fails to realize that although American Hustle is set in the era of the FBI’s famous ABSCAM investigation, it transcends it.

The film raises timeless legal and moral questions; it offers a deeply moving and well motivated love story; it explores the human condition — the conflict between who we are and how we choose to appear — it addresses the legitimate limits of government power, intrusions on privacy, entrapment, and so much more. Tragic in spots, hysterically funny in others, brilliantly acted, directed, and written, this deeply truthful and yet fanciful love story contains a classic “Hollywood Ending” reminiscent of an earlier era.

Lines from the movie merit repeating, themes from the film merit considering and discussing, characters merit recalling, scenes merit analyzing, and questions merit discussing. Future blog posts shall do this. But for now, I post this, especially for those film fans who want to watch the Oscars prepared to root for the best.

Iran: Staying in the Middle Game

Should we negotiate a partial deal with Iran now?

Apparently the Obama administration and Iran have come to a meeting of the minds whereby Iran will, for the moment halt further development of nuclear capacity and the U.S. with Europe will for the moment suspend some sanctions.  The Israelis and Saudis vigorously oppose this deal, viewing it as a dangerous miscalculation, prematurely easing pressure right before it pays real dividends.

We often hear it said that the U.S. and its European allies are playing “a chess game” with this would-be nuclear power and fundamentalist sponsor of international terrorism.  Can we secure a permanent advantage by forever stripping them of a nuclear weapons capacity?  With no access to intelligence reports, I don’t really know how close Iran has come to developing a nuclear arsenal.  But we all have access to the wisdom of the great chess analysts.

A chess game can be roughly divided into three phases:  Opening, middle, and end game.  Right now, our relations with Iran seem to solidly place us in the middle game, with all its attendant positional complications.  Pressure mounts on Iran as our sanctions increasingly take a bite on its economy, threatening long term permanent damage if not collapse.   Pressure mounts on the U.S. as Iran progressively moves toward a permanent nuclear capacity, invulnerable to Israeli, Saudi, and perhaps American attack.

We each face the same question, from radically different perspectives:  Do we exchange material concessions, and convert the present position into a simplified endgame, where Iran’s economy, once again thrives without nuclear weapons, but retains an ongoing capacity to damage fundamental Western interests?  Do they exchange their pressure on other nations in the region from their nuclear weapons capacity, for our pressure on their economy?  With economic sanctions biting, and Iran’s “moderate” new President purring for a deal, for the moment we seem to have the advantage.

“Advantages are either permanent or temporary,” observed Reuben Fine, a great chess grandmaster and practicing psychoanalyst.  “A permanent advantage is one which is inherent in the structure.”  A temporary advantage, on the other hand would likely “be dissipated in the course of time.”  Thus, “something should be done about it quickly.”

The U.S. and Iran must each decide whether to transition from middle game to end game.  In chess, that generally means exchanging Queens.  But that transition can also take place by exchanging minor pieces.  Here it means exchanging some economic sanctions for a halt to Iranian progress toward nuclear weapons capacity.  If Chess offers us valuable metaphors, perhaps we might mine it further.  “The player must often make up his mind whether to stick to the middle game or go into an endgame,” counseled Fine, in his classic, The Middle Game In Chess.  The answer depends on whether his advantage (or disadvantage) is permanent or temporary.  “With a permanent advantage, or a temporary disadvantage, end-game play is called for, while with a temporary advantage, or permanent disadvantage, middle-game play is to be preferred.”

So where are we?  Our goal should not be to punish Iran but to pressure it.  To gain a permanent advantage, the U.S. must degrade Iran’s economy for the foreseeable future, forcing it to turn inward and restrict its internationally threatening and destabilizing behavior.  We’re moving in that direction but don’t seem to be there yet.  Of course, complete victory would include internal rebellion and replacement of the regime.   To gain a permanent advantage, Iran must develop both a weapons capacity and an economy exempt from Western pressure, which would allow it to dominate the region.

Apparently, neither side yet has a permanent advantage.   But Iran clearly seems to have a temporary disadvantage.   Its currency devalues, its monetary reserves diminish, its economy falters.  All this would end with a comprehensive negotiated agreement.  Thus it seemingly makes sense for Iran to transition toward an endgame, even in small steps, by exchanging pieces.  Iran, presently on defense, may well have concluded it’s best to continue its own positional play, negotiating for time, stripping down while we do, as Reuben Fine observed, trying to “draw a lost game.”

The U.S. and its European allies would seem to have a temporary advantage, not yet convertible to a permanent advantage.   Even a temporary partial agreement would likely leave Iran in a better position, after recovering, to convert its nuclear fuel to weapons, support international terrorism and dominate the region permanently.  Thus, it seems Israel and the Saudis are right on this one.  The U.S. and Europe should rachet up the pressure, increase the sanctions, continue with the middle game.  For if we play this phase correctly, skillful position play might allow us, in Fine’s terms, to demonstrate  “the art of winning a won game.”

If so, let’s hope the Obama Administration has the guts to stick with it and win.



In a Word

That’s what the NY Times account quotes Secretary of State John Kerry as assuring the Egyptian leaders about the Obama administration’s decision to suspend the delivery of major weapons systems to this troubled country.   No, not a punishment for deposing, and arresting the Islamist president.  Not a punishment for putting him on trial for murder and suppressing dissent.  Of course, the administration has also declared that the coup was not a coup – or else they’d have to suspend aid completely.

What’s in a word?  Apparently a lot.  But specifically, what’s in this dirty word “punishment”  — that everybody seems to avoid these days.  My soon to be released book, THE DEATH OF PUNISHMENT, suggests by its title our aversion to punishment these days.

In Egypt’s case it’s clear why we avoid that word.  We punish criminals – or used to.  We don’t want to stigmatize the regime whose secular support we need to help combat terrorism, to help keep the peace in the Middle East, criminals.   We also punish children, or used to.  We hardly want to disrespect with a paternalistic air a proud military leader.  So the U.S. Secretary of State, joins in the Newspeak.  In this grown-up world where we rarely mean what we say or say what we mean, withholding helicopters, missiles, parts for tanks — “it’s not punishment,” the U.S. Secretary assured an Egyptian reporter.  “It’s a reflection of policy in the United States under the law.”

So think about that the next time you would punish without admitting it:  You broke the law, violated the rules.  We have no choice.  Blame it on the rules.  Leave the responsibility where it belongs – everywhere-elsewhere, i.e. nowhere.

Justice Delayed

Think of how terrible it must be to fear needles and know that you’re scheduled for a shot.  To make it worse, the doctor tricked Ronald Phillips by examining the poor fellow to locate a good vein during a checkup.  That’s what happened – at least if we believe Phillips – whose lawyers questioned him for an hour while Judge Gregory Frost looked on by video hookup.  No matter that Phillips raped and killed 3-year old Sheila Marie Evans twenty years ago.  Now is now.

And so the abolitionists play their latest game:  Attack the drugs, boycott the source, attack the execution protocols.  As AP Legal Affairs Writer Andrew Welsh-Huggins reports, this scene plays out in Ohio, where the “Department of Rehabilitation and Correction” – how’s that for Newspeak, punishment anyone? – prepares to execute this child rapist/murderer.

And it plays out in Missouri, where racist Joseph Franklin who admits to murdering at least 15 people – because they were black or Jewish – awaits his date with the needle.  Again, the suppliers of the anesthetic balked.  But now states have done the obvious – mix their own drugs from the basic ingredients.  So the abolitionists attack these “compounding pharmacies” as untested.

All these silly, superficial arguments obscure the underlying controversy:  Can death be appropriate punishment?  Can anybody deserve to die?  Can we define, detect, prosecute and punish without racial bias?  Every minute the worst of the worst continue to live, to enjoy life counts as a victory of sorts for those opposed to the death penalty.  Delay, delay, delay.   In some states, their prayers are answered.

Give us this day our daily day.



Now that the 2013 World Series has ended, with all its twists and turns,  who can forget Game 3’s dramatic conclusion as the St. Louis Cardinals won on that infamous “obstruction call.”  Nobody was satisfied that the game should be decided by a runner obviously tagged out at home plate being awarded the winning run because he got tangled up in the third-baseman’s legs, while trying to break for home, when the catcher’s errant throw to third whizzed by the helpless fielder.

Nobody was satisfied with the way it ended, and yet after reviewing the call, nearly everybody — including the losing manager of the Sox — conceded that the umpire had “gotten it right”:  The fielder, whether intentionally or not, had obstructed the runner’s attempt to run the bases.  Whether his obstruction was accidental or intentional, under the rule, it made no difference.

But should it?

Commentators suggested that the rule itself was at fault.   The “obstructing” fielder’s intent should make all the difference.  If it was an accident, then no team should be punished by the loss of a game, much less a World Series game.  On the other hand if the obstruction was intentional, the Sox got what they deserved.

Major league baseball itself announced it will revisit the rule in the off season.

Should the result of obstruction hang on the obstructing player’s intent?  Chief Justice Oliver Wendell Holmes once famously observed that “even a dog knows the difference between being kicked and stumbled over.”  Perhaps in the clear case.  And to this old dog, the third baseman, twice raising his legs, did intentionally impede the runner from dashing home with the winning run.  And therefore the Sox, for whom I’m rooting, got what they deserved by losing the game.

But thinking like this, I would argue, obscures the true nature of the rule and the rightful consequence of enforcing it.

Awarding the obstructed runner the base and therefore the team the game was not a punishment to the losing team.  It was a penalty – imposed to compensate the injured party.   There’s a world of difference between punishments and penalties, although the same Justice Holmes, a pragmatist, would deny it.  He counseled that if you want to know what the law is, and nothing else, look at it from the perspective of a “bad man.”  A bad man selfishly wants to know one thing only:  What’s going to happen to me?  Thus for Holmes and other pragmatists, the law becomes nothing more than “a prediction of what the courts – (umpires) – will do.”  To these “realists” – some of us would call them cynics – there’s no difference between a tax or a fine.  It’s all a cost of doing business.  The cost of obstructing the base runner, whether intentional or not, is to award him the base he would have reached.

Instinctively, however, most of us base punishment largely on the culpable mental state of the actor.  Two children die in a fire.  If they intentionally set the fire they’ve committed murder.  If they  accidentally knocked a candle off a table and didn’t even realize it, it’s a tragedy, but not murder.  Same harm, very different reaction.

So the point is, if we see the winning run as a punishment inflicted on the Sox, then the fielder’s intent should matter.  If however, as the rule reads, we hold the obstructing team strictly liable for the results of the obstruction – not as a punishment but as a penalty to keep the game on its correct course – then the rule as it stands was correct.

As everybody involved in criminal law and everyday life learns, we can only infer culpable mental states from surrounding circumstances.  Not always an easy matter.  I happen to think this particular obstruction was intentional – at least it sure appeared that way on replay.  But whether or not it was intentional, justice was done under the rules.

And when the Committee does revisit the rule – to assess the justice of the rule itself as opposed to the correct call made under it, I hope they keep the rule as is.  Penalties are not punishments.  Sometimes it’s important to remember the difference.


All’s Well That Ends Well?

So the U.S. and Russia has struck a deal, and the UN Security Council signed on.  Syria will fork over its chemical weapons – probably – for destruction, eventually.  The “international community” will destroy them.  Problem solved.

But is it?

Assume Assad, the mass-murdering international outlaw with friends in high places, means to comply with this agreement, and not secretly transfer his lethal contraband to confederates such as Hezbollah or Iran to commit further war crimes.   Assume this ruthless killer will be disabled for the foreseeable future from obtaining or using outlawed weapons of mass destruction, even as he becomes better assured of staying in power.  Other would-be criminals against humanity will witness this outcome and draw appropriate lessons.

What’s wrong with this picture?  This chemical castration, if carried out, incapacitates Assad somewhat.  Perhaps the memory of almost being degraded by U.S. missiles will convince him not to commit further war crimes, by either repeating this particular offense, or committing the next with nuclear or biological weapons.  Imagine, and it’s a stretch, that other would-be murderers, similarly situated – say Iran, in the midst of its own charm offensive – feel deterred from their own contingently planned criminal behavior.

Let’s stretch the scenario beyond the outer limits of reason.  Imagine this new deal and near miss with U.S. missiles causes Assad to regret and repent the hundreds of children he gassed to death.  He suddenly feels transformed with a new set of values that will hereafter restrain him from future mass murders of innocent civilians.

According to this rosy but unrealistic picture in classic terms, the deal now struck between Russia and the U.S. at the UN incapacitates Assad, specifically deters him, generally deters others, and rehabilitates him.  Furthermore, the vaguely written final text of an artfully crafted UN resolution denounces his despicable behavior in poison gassing a village while not specifically attributing responsibility to him.  All traditional purposes of the criminal law have been served.

Except one.

“What about the murderer Bashar who gave the order?” Gen. Salim Idriss, the Syrian rebel commander, demanded of the powers that be, when both sides first announced the possible U.S./Russian deal.  “Should we forget him?”  Gen. Idriss rejected this dirty deal for one simple but deep-seated reason:  It fails to punish the mass murder retributively.

The past counts.

We too easily forget that justice means more than deterrence, incapacitation, rehabilitation, and denunciation.  Justice for the worst of the worst requires retribution – actual, proportionate punishment.  The vague UN resolution does threaten someday to punish ‘those responsible’ for the August attack without assigning blame.  Likely, after Assad’s regime has crumbled, if he’s left alive, he’ll be punished for this or a thousand other crimes.

Meanwhile, by setting a timetable for weapons’ destruction that assures Assad at least another year in power, the UN resolution rewards this crime against humanity — while the world rejoices at the peaceful resolution, without much caring whether the criminal gets his just deserts.