Monday, June 29, 2015

Glossip Gossip

Supreme Court Allows Execution Drug in 5-4 Case:

The Supreme Court ruled on Monday against three death row inmates who had sought to bar the use of an execution drug they said risked causing excruciating pain.

Justice Samuel A. Alito Jr. wrote the majority opinion in the 5-to-4 decision. He was joined by the court’s four more conservative justices.

The drug, the sedative midazolam, played a part in three long and apparently painful executions last year. It was used in an effort to render inmates unconscious before they were injected with other, severely painful drugs.

Four condemned inmates in Oklahoma challenged the use of the drug, saying it did not reliably render the person unconscious and so violated the Eighth Amendment’s ban on cruel and unusual punishment. Lower courts disagreed.

The new case, Glossip v. Gross, No.14-7955, originally included a fourth inmate, Charles F. Warner. But he was executed on Jan. 15 after the Supreme Court denied his request for a stay by a 5-to-4 vote.
LOL. Well there's one way to cut down on the number of petitioners.

If you read Alito's opinion, it's pretty narrow and applies pretty much only to Oklahoma and only to this one particular narcotic. But it was on the larger issue, of whether the clock has run on the death penalty itself, that the justices squared up and came out fighting.

Alito's opinion begins the fight with an outright false premise: "Because capital punishment is constitutional, there must be a constitutional means of carrying it out."

There's nothing in the constitution whatsoever that addresses capital punishment in any form, fashion or words. They note that it was "acceptable" at the time of the Framers, etc. but the document itself is completely silent on it.

Later, Scalia hilariously acknowledges this but argues the Constitution "contemplates capital punishment" (which sounds awfully like a "living breathing document" doesn't it? I'm not aware of any inanimate objects that "contemplate" things.) That's because, of course, it does no such thing.

He and Thomas go off in concurrences with other various other straw men, lurid details of murdered infants, and completely ignore the issue of exoneration, which Breyer lays out in precise detail in his call for the eradication of the death penalty itself.

Apparently things got so heated, all the concurrences and dissents were read aloud from the bench this morning, something I'm pretty sure has never happened before. It shows the general vitriol over the issue that plagues the court.

Sotomayor's dissent was a brutal vivisection of the court's opinion, especially as she accuses the five conservatives of being down with torture.
“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive. But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.”
It's disappointing Kennedy didn't join the others, but Breyer's concurring dissent was a tour de force argument for abolishing capital punishment, and a helluva read. Filled with facts, figures, studies, data, the Trop decision (which sends Scalia into spasms: "that case has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind") and so on, there are more justices willing to toss the system of death onto the ash heap of history and be done with it than maybe we've had before.

Breyer also subtly writes to Kennedy regarding death row and solitary confinement as another possible venue to revisit the constitutionality of capital punishment.

As I've noted here dozens of times over the years, the system of capital punishment is quite literally gasping its last breaths these days. But though the indefensible is become increasingly indefensible, you have to grant the pro-dp side a victory nonetheless.

I'll borrow from Roberts in the Obergefell decision last week: celebrate executions resuming in Oklahoma, even celebrate the chance to exact a few more pounds of flesh and bone in joy and retribution. But do not celebrate the Constitution. It had nothing to do with it.

The case is Glossip v. Gross, et al (2015)

Friday, June 26, 2015


Same Sex Marriage is a Right, Court Rules 5-4:

In a long-sought victory for the gay rights movement, the Supreme Court ruled on Friday that the Constitution guarantees a right to same-sex marriage.
Justice Anthony M. Kennedy wrote the majority opinion in the 5 to 4 decision. He was joined by the court’s four more liberal justices.

The decision, the culmination of decades of litigation and activism, came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of same-sex marriage.
Justice Kennedy said gay and lesbian couples had a fundamental right to marry.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” he wrote. “In forming a marital union, two people become something greater than once they were.”

“It would misunderstand these men and women to say they disrespect the idea of marriage,” Justice Kennedy said of the couples challenging state bans on same-sex marriage. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
Kennedy's words are truly eloquent. I wonder how many straight people who have f'd up their own marriages read those passages above and hung their heads in shame (and if they didn't, they should).

Those who will resist this decision, which has basically been inevitable for several years now, will no doubt hang on the words of the dissenters. Roberts actually has some valid concerns regarding religion and legislative interpretation; the others, not so much.
Chief Justice John G. Roberts Jr., in a dissent joined by Justice Antonin Scalia and Clarence Thomas, said the Constitution had nothing to say on the subject.

“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Chief Justice Roberts wrote. “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

In a second dissent, Justice Scalia mocked Justice Kennedy’s soaring language. “The opinion is couched in a style that is as pretentious as its content is egotistic,” Justice Scalia wrote of his colleague’s work. “Of course the opinion’s showy profundities are often profoundly incoherent.”
Because if anyone knows pretentiousness, egotism and incoherence, it's El Nino. Just "ask the nearest hippie."

Anyway, it's the law of the land as of today. Now watch the divorce lawyers rub their hands together in glee.

The case is Oberegefell v. Hodges (2015)

Next up: SCOTUSinjection on Monday. Will the court ban lethal injection, and possibly the death penalty itself? Jiggery-pokery, right?

Thursday, June 25, 2015


"We should start calling this law SCOTUScare." - Antonin Scalia, in dissent in King v. Burwell (2015), upholding federal subsidies for Obamacare.
He also dropped "interpretive jiggery-pokery" into his dissent, and called the majority's reasoning "pure applesauce." Good times.

Read Scotusblog for more in-depth, but the one theme that seems consistent in the various analyses is that the 6-3 rebuke of the conservative argument against the Affordable Care Act was beyond mere defeat. It enshrines Obamacare right alongside Social Security and Medicare for generations to come.

Meanwhile, lost in all the noise, was another decision of even more importance, Texas Department of Housing v Inclusive Communities (2015). This case was pretty much written off as a 5-4 conservative slam dunk regarding housing discrimination and the use of race to gauge "disparate impact."

It was 5-4 alright, but Kennedy went with the liberals on this, rebuking conservatives, and handed civil rights groups a major victory. Again, Scotusblog for more.

Maybe this analysis by Adam Liptak is right...maybe the Roberts court is swinging to the left, issuing more liberal decisions than any court since the Warren years in 1969.

Jiggery-Pokery indeed.

Friday, June 19, 2015

SCOTUS, the Death Penalty, and Solitary Confinement

Two interesting decisions yesterday from the court on the death penalty, one against a death row inmate challenging his conviction on a violation of the Batson rule, and one in favor of a death row inmate challenging his conviction on a violation of the Atkins rule.

In a 5-to-4 decision, the court ruled that a death row inmate in Louisiana was entitled to a hearing to determine whether he is intellectually disabled, and so may not be executed.
The case, Brumfield v. Cain, No. 13-1433, concerned Kevan Brumfield, who was sentenced to death in 1995 for killing Betty Smothers, a Baton Rouge police officer. Seven years later, in Atkins v. Virginia, the Supreme Court barred the execution of the intellectually disabled.

Justice Sonia Sotomayor, writing for the majority on Thursday, said that Mr. Brumfield’s I.Q., of 75, and his difficulties with learning and performing ordinary tasks were enough to raise reasonable doubts about his intellectual capacity. Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the majority opinion.

Justice Clarence Thomas filed an impassioned dissent that set out in detail the horror of the crime and its devastating impact on Ms. Smothers’s family. He took the unusual steps of posting Mr. Brumfield’s videotaped confession on the Supreme Court’s website and of including a photograph of Ms. Smothers in an appendix to his opinion.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr. joined most of Justice Thomas’s dissent. But they did not join a portion discussing Warrick Dunn, Ms. Smothers’s eldest son, who became a football star.
If you want further evidence suggesting that Thomas, probably the more ignominious appointment ever to the court, is really slipping the bonds of reality, read his dissent, almost none of which as anything to do with the case, facts or finding of the court, and everything related to personal blood lust and retributive tantrum.

In the second case which conservatives prevailed,  
"the court ruled against a death row inmate in California who said prosecutors had acted improperly in using peremptory challenges to exclude all seven black and Hispanic potential jurors from his trial. The trial judge allowed prosecutors to supply benign explanations for the challenges in a hearing outside the presence of the defense lawyers.

Justice Alito, writing for the court’s five more conservative members, said the challenges were “sufficient to raise suspicions about the prosecution’s motives.” He added that excluding defense lawyers from the discussion while prosecutors explained themselves might have violated the constitutional rights of the inmate, Hector Ayala, who was convicted of triple murder.

But any errors were harmless, Justice Alito wrote, because there was no good reason to think Mr. Ayala’s lawyers would have persuaded the judge to reject the prosecutors’ reasons.

Justice Sotomayor, joined by the court’s other liberal members, said “little doubt exists that counsel’s exclusion” from the hearing “substantially influenced the outcome.”
It seems like a fairly typical outcome, and the opinions and dissent are rather boring to read, until you get to the concurrence filed by Kennedy, unrelated to the case, and totally related to the constitutionality of solitary confinement.
Justice Kennedy filed an unusual concurrence, one he acknowledged had “no direct bearing on the precise legal questions presented” in the case, Davis v. Ayala, No. 13-1428. It was, instead, an extended attack on solitary confinement prompted by a remark from a lawyer when the case was argued. “Years on end of near-total isolation exacts a terrible price,” Justice Kennedy wrote.
From the concurrence:
The human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators.  One hundred and twenty-five years ago, this Court recognized that, even for prisoners sentenced to death,solitary confinement bears “a further terror and peculiar mark of infamy.”

Too often, discussion in the legal academy and among practitioners and policymakers concentrates simply on the adjudication of guilt or innocence. Too easily ignored is the question of what comes next. Prisoners are shut away—out of sight, out of mind. It seems fair to suggest that, in decades past, the public may have assumed lawyers and judges were engaged in a careful assessment of correctional policies, while most lawyers and judges assumed these matters were for the policymakers and correctional experts.
There are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular.

These are but a few examples of the expert scholarship that, along with continued attention from the legal community, no doubt will aid in the consideration of the many issues solitary confinement presents. And consideration of these issues is needed. Of course, prison officials must have discretion to decide that in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates. But research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price. See, e.g., Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325 (2006) (common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors). In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Over 150 years ago, Dostoyevsky wrote, “The degree of civilization in a society can be judged by entering its prisons." There is truth to this in our own time.
It's quite a shot across the bow, suggesting, as in several juvenile cases recently related to extended life sentences, etc. that there may be a growing coalition of justices willing to look at solitary again and perhaps do away with it. 

Well, except Clarence Thomas, who even in this concurrence, had to get in a three sentence concurrence/tantrum of his own to state:
I write separately only to point out, in response to the separate opinion of JUSTICE KENNEDY, that the accommodations in which Ayala is housed are afar sight more spacious than those in which his victims now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.
Talk about a straw man, germane and appropo to absolutely nothing. It's a helluva thing when even the other conservatives on the court (particularly buddy Scalia) are shying away from you like the crazy old uncle.

The cases are Davis v. Ayala (2015) and Brumfield v. Cain (2015).

UPDATE: an alert reader emailed to note that Thomas crossed over from the conservatives on Monday, joining with the four liberals to allow Texas to ban the Confederate Battle Flag emblem from its license plates in a 1st amendment case. This is particularly prescient, given the shooting of nine black church goers in Charleston yesterday (the alleged shooter is a white supremacist).

Perhaps there's hope yet for Justice Thomas.

Sunday, June 14, 2015

Bail/Bond: The Extortion Racket

Yesterday I mentioned in my post on Broken Windows what a racket Bail/Bond has become in the U.S., extorting from the poor and working classes and providing nothing in return. Then a loyal reader sent me a link to John Oliver's show, where he takes down the entire Bail/Bond system in about 17 minutes.

Awesome. Watch to the the end because his vivisection of entertainment "reality" t.v. shows, which glorify clowns like "Dog: the Bounty Hunter" and other toothless vigilantes, is spot on. It's these kinds of shows that help perpetuate the broken bail/bond system.

Personally I can't wait to watch, coming this fall to A&E Network, "PreTrial Services: It's Cost Effective, Motherf*#!ker." Ha ha ha....

Saturday, June 13, 2015

Broken Windows: Broken Legacy

Beyond the Chokehold: The Path To Eric Garner's Death:

The chokehold. The swarm of officers. The 11 pleas for breath.

Mr. Garner’s final words — “I can’t breathe” — became a rallying cry for a protest movement. On screens large and small, his last struggle replayed on a loop. Official scrutiny and public outcry narrowed to focus on the actions of a single officer.

But interviews and previously undisclosed documents obtained by The New York Times provide new details and a fresh understanding of how the seemingly routine police encounter began, how it hurtled toward its deadly conclusion and how the police and emergency medical workers responded.

This was not a chance meeting on the street. It was a product of a police strategy to crack down on the sort of disorder that, to the police, Mr. Garner represented. Handcuffed and motionless on the ground, he did not receive immediate aid, and the apparent lapses in protocol prompted a state inquiry. The first official police report on his death failed to note the key detail that vaulted the fatal arrest into the national consciousness: that a police officer had wrapped his arm around Mr. Garner’s neck.
Keep in mind, the man died because he was allegedly selling untaxed cigarettes.

But the police strategy mentioned above was the ironically named "Broken Windows" strategy, adopted by the NYPD in the early 1990's, and which I've written critically about ad nauseum over the past 15 years. 

Matt Taibbi has more on the broken strategy:
Broken Windows policing, which gained renown in the Nineties thanks to politicians like former New York Mayor Rudy Giuliani, is the mutant offspring of our already infamous race history, a set of high-tech tricks to disguise old-school discriminatory policing as cheery-sounding, yuppie-approved, Malcolm Gladwell-endorsed pop sociology. The ideas grew out of a theory advanced in 1982 by a pair of academics, James Q. Wilson of Harvard and George Kelling of Rutgers. "If a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken," the pair wrote in The Atlantic, arguing in "Broken Windows" that disorder and crime were "inextricably linked" and that fixing the former would impact the latter.
In academia Wilson and Kelling's theory had been pedaled for decades before implementation, usually being rejected for its shoddy reasoning and slipshod methodology. Nonetheless, they found an adherent in Bill Bratton, and it was off to the races in Gotham.
Broken Windows was introduced in New York in 1990, when a Bostonian named Bill Bratton was named the city's Transit Police chief. At the time, New York was plagued by street crime, with a murder rate north of 2,000 killings a year. Any idea that seemed like it had half a chance of working seemed like a good idea.

After Giuliani made Bratton his police commissioner in 1994, the two men took the Broken Windows approach to the next level. New terms entered the lexicon — "zero tolerance," "stop-and-frisk," "community policing" (an Orwellian euphemism every bit as preposterous as the Clear Skies and Healthy Forests initiatives dreamed up by the Bush administration). These new, more interventionist strategies relied on endless streams of adversarial interactions between police and the subject population, stopping and sometimes searching people by the thousands.

The sociological idea behind Broken Windows was pitched as something much more benign, of course. It was supposed to be the government version of tough love. And it was an easy sell politically, particularly to white and upper-class New York. From the point of view of the uptown crowd, it was a cheaper solution to urban decay than creating jobs. It also had the advantage of blaming the subject population for the rot and destruction of crime.
Let me pause to correct him on one thing there: there was never a "sociological idea" behind it (at least not a valid one). Wilson and Kelling advanced the thesis outside the usual peer review world of academia, then claimed the strategy had academic cred because they were academics.
A City University of New York professor eloquently described the mission creep of Broken Windows last year. "If the problem is a broken window, they should fix the window," professor Steve Zeidman told Reuters. "But somehow we don't fix the window, we just arrest people who start hanging out by the broken window."

Though academics were already claiming that stop-and-frisk tactics didn't work, those critiques didn't yet enjoy the consensus they do now. In fact, stop-and-frisk wasn't just still hot at the time, it was intellectual chic. In 2000, America's leading fast-food philosopher, Malcolm Gladwell, helped launch his career on the back of a half-baked analysis of Broken Windows in a book called The Tipping Point.
Again, maybe not all of us in academia were objecting loudly enough, but there were certainly sociologists and criminologists like Christian Parenti, Jeffrey Reiman and Michael Welch (to name a few) who were sounding the alarm, well before Gladwell and his drivel appeared.
People are focused on how violative these policies are to the population, but the flip side is that this high-volume, low-yield approach to enforcement is a terrible policy for good cops, too. "Right now, it's like they're saying, 'We have a robbery problem, and we fixed it,' " says Miranda. "Actually, no, you didn't fix it, you just arrested everybody. It's lazy policing."
Exactly. It makes a mockery out of the profession of law enforcement (reducing what should be trained professionals to this kind of behavior ). We focus so much on individual rogue officers or whether the police are racists, when in fact the problem is systemic, structural and procedural. And no one has ever been properly busted for instituting the failed policy itself.
Decades into this campaign of organized harassment, the worst thing that happened to the cops who stopped thousands upon thousands of people with no good reason was that they started to become the subject of academic studies. In 2013, New York University examined the data relating to CompStat and the Broken Windows arrests and concluded that they had little to no impact on the crime rate.

Despite such conclusions and lawsuit rulings that declared these programs discriminatory, nobody was ever punished. Giuliani didn't show up in Bed-Stuy with a fruit basket. Malcolm Gladwell didn't have to give back his Tipping Point royalties. And nobody had to apologize.

Lack of consequence rarely goes unnoticed in big bureaucracies. So it's hardly surprising that police started crossing a new line: inventing reasons not just for stops and searches but for arrests.

Say you live in a large American city — Baltimore, for example. Police stop and search you, something goes wrong and you end up getting your ass kicked. You don't die, and more to the point, nobody films you not dying, which means CNN doesn't show up the next day.

You're hauled off to jail. Sometime between a few hours and a few days later, you learn the charges against you. It's usually a hell of a list, which is part of the game. On what Ansar describes as "that motherfucking paper they slide under the door," you might find yourself charged with resisting arrest, assault against a police officer, criminal possession of marijuana, criminal possession of a weapon, reckless endangerment and whatever else the on-scene officers can think of.

The case is weak, however, so a few days or weeks later a prosecutor tells you charges will be dropped. In being processed, you sign a paper. It reads:

I, (name), hereby release and forever discharge (complainant) and (law enforcement agency), all its officers, agents and employees, and any and all other persons from any and all claims which I may have for wrongful conduct by reason of my arrest, detention, or confinement on or about (date).
This General Waiver and Release is conditioned upon the expungement of the record of my arrest. . . .

You sign, and your "criminal record" disappears, which is great for you. But so does the incident, which is expunged from the public record. And, except in very rare cases, the same police go right back out on the street. The only results of the entire episode are things that can hurt you: Your prints might now be in the system, you might attract future attention by the same police, and your employer might be upset by the whole situation.

This expungement trick is the way it works in Baltimore. To make the charges go away, victims often end up overtly forfeiting a right to sue (by signing a paper to that effect) or effectively doing so by pleading guilty to lesser offenses (undercutting, say, any federal civil rights case they might later want to bring).

If a Baltimore case is bad enough to warrant a financial settlement, the gory details usually end up disappeared behind a nondisclosure agreement. A. Dwight Pettit and Baltimore trial lawyer Larry Greenberg can't tell me about most of their worst cases, because they're sealed. In other words, if the victim takes the city's money after a beating or a false arrest, then the city typically gets to dispose of the incident without apologizing or even publicly acknowledging it.

It's the street-level equivalent of the "neither admit nor deny" settlements that Wall Street offenders made infamous after 2008. A bad thing happens, but somehow nobody is guilty of anything — money just changes hands.
Except, not only is the settlement chump change, but often times the defendant is still on the hook to the bail/bond leeches, having to make payments, sometimes for years on payment plans, on the amount they had to post to get out...on the now expunged charge.
Though money bail is firmly entrenched in the vast majority of jurisdictions, the practice is coming under new scrutiny in the face of recent research that questions its effectiveness, rising concerns about racial and income disparities in local courts, and a bipartisan effort to reduce the reliance on incarceration nationwide.

The money bail system is supposed to curb the risk of flight by requiring defendants to post bond in exchange for freedom before trial. But critics say the system allows defendants with money to go free even if they are dangerous, while keeping low-risk poor people in jail unnecessarily and at great cost to taxpayers.

For those who cannot afford to post bail, even a short stay in jail can quickly unravel lives and families. Criminal defendants are overwhelmingly poor, many living paycheck to paycheck, and detention can cause job losses and evictions. Parents can lose custody of their children and may have a difficult time regaining it, even when cases are ultimately dropped. And people in jail who are not guilty routinely accept plea deals simply to gain their freedom, leaving them with permanent records.
The bail/bond system is another systemic cancer on the criminal justice system, sucking defendants who can't afford it dry, and extorting vast amounts of money from defendants who can. It's a completely unnecessary middle man that doesn't actually provide a service. Bail/bond around the world is paid directly to the court; the U.S. is the only country in the world that uses privatized companies, who employ rogue/criminal "bounty hunters" in the process.

So tying it all together, what you keep seeing online and on t.v. today (shooting unarmed suspects, chokeholds, beatings, harassment, and so on), is not a police or law enforcement or even jail problem. It's the implosion of a brain-dead policy of criminal justice, created by know-nothing politicians and so-called experts/gurus 25-30 years ago. When you declare "war" on certain segments of your own citizenry (War on Drugs, War on Disorder, War on Immigration, War on Poor people, etc.) the end result will always be disaster.

Reform is needed now more than ever, or else the implosion will continue unabated.

Passing: Is Transracial The Same As Transgender?

Black or White? Woman's Story Causes Furor:

She has professed an affinity for black people since she was a teenager, when her parents adopted four black children. She chose a college where she could immerse herself in racial issues. She married a black man and built a reputation as an advocate for civil rights.

Rachel A. Dolezal would hardly be the first person to embrace a racial identity she was not born or raised in, but a rare twist in her story has suddenly turned her into a subject of national debate. Ms. Dolezal, president of her local N.A.A.C.P. chapter and a university instructor in African-American studies, has claimed for years that her heritage is partly black.

And that, her parents say, is a lie.

“She’s clearly our birth daughter, and we’re clearly Caucasian — that’s just a fact,” Lawrence A. Dolezal said in an interview from his home in Montana on Friday. “She is a very talented woman, doing work she believes in. Why can’t she do that as a Caucasian woman, which is what she is?” Ms. Dolezal did not respond to numerous phone calls, emails or knocks on her door in Spokane, Wash., on Friday, but the allegation lit up the Internet, fueled by Ms. Dolezal’s apparent refusal to give a direct answer about her racial background, and by family photos of her as a blue-eyed teenager with straight blond hair.
So on the one hand, this seems like a case of "passing", if you will. Until, the article suggests, you note the similarities between Dolezal and Bruce/Caitlyn Jenner and her recent transition to female.
Blacks and liberals accused Ms. Dolezal of an offensive impersonation, part of a long history in which whites appropriated black heritage when it suited them. Jonathan Capehart wrote in The Washington Post, “Blackface remains highly racist, no matter how down with the cause a white person is.” Others noted that for her, unlike black people, casting off the advantages of whiteness was a choice. “I wonder what race Rachel would become if she got stopped by the police?” the author Terry McMillan wrote on Twitter.

But many conservative commentators accused liberals of hypocrisy for accepting Caitlyn Jenner as a woman, but not Ms. Dolezal as black. “So, to recap, if Rachel Dolezal says she is a man, we must all agree, on pain of being publicly censured,” Rod Dreher wrote in The American Conservative. “But if Rachel Dolezal says she is black, it is fair game to challenge her claim.”
A quick search reveals that Racial Dysphoria (Racial Identity Disorder) seems very similar to Gender Dysphoria (Gender Identity Disorder), with the exception that the former is not in the DSM-V (of course, that too is meaningless, given the subjectivity of the DSM anyway). The operative word here being Dysphoria.

Also,  the arguments against racial dysphoria, that it's just a racist form of "blackface," or arguments that the person can always "return to a position of privilege" being white, are the same arguments used for many years to discount transgenderism (they are just "drag shows" or "drag queens" who can return to male privilege, etc.).

However, many on the "left" are pushing back against what is viewed as "conservative" reaction, arguing the two things couldn't be any more different and that drawing those parallels harms both transgenderism and, apparently, people pretending to be other races.

Sidebar: the one thing I would caution you about is politicization. The minute this issue is seen as a conservative/liberal, Republican/Democratic issue, all sense will be lost (and Googling the topic, it appears that shark has been jumped already).

Sociologically speaking, we use the term passing to describe the ability to transcend a variety of social groups, from race and ethnicity, to gender, class, ability, and so on. The history of racial passing was largely a 20th century phenomenon, and the term was used derogatorily when African-Americans attempted to "pass" as white. But whites passing as African-American seems to have happened rarely, if at all, though it would still fit with the sociological use of the word.

No one knows at this point what Dolezal's story is (whether she's claiming racial dysphoria or if she was simply lying all this time), but the debate has exploded the interwebs in the past few days as parallels have been drawn between the transgender movement and what could seemingly be a transracial movement, designed to break down and explode rigid conceptions of race and ethnicity in an increasingly multiracial and multi-ethnic society.

If you can get past the ideological pablum on both sides and try to view this as an issue if identity construction and sociological passing, welcome to what could be the next chapter in 21st century race relations.