You Know Your Mayor Is a Whiny Little Bitch When…

He’s Peoria, Illinois mayor Jim Ardis, who is really thin skinned:

PEORIA — Police searched a West Bluff house Tuesday and seized phones and computers in an effort to unmask the author of a parody Twitter account that purported to be Mayor Jim Ardis.

[...]

Three people at the home were taken to the Peoria Police Department for questioning. Two other residents were picked up at their places of employment and taken to the station, as well.

The Peoria police chief appears to be kind of a dim bulb as well:

Peoria Police Chief Steve Settingsgaard said officers were investigating the creator of the Twitter account for false impersonation of a public official. The offense is a Class A misdemeanor punishable by a fine of up to $2,500 and up to a year in jail.

[...]

The content of tweets, or entries on the account, ranged from ambiguous to offensive, with repeat references to sex and drugs — and comparisons of Ardis to Toronto Mayor Rob Ford as Ford’s drug use while in office became public.

By about March 10, the bio of the Twitter account was changed to indicate it was a parody account.

Settingsgaard, however, said the intent of the account was not clearly satirical.

Needless to say, there are now a lot more Peoria parody accounts.

More about this incident from Justin Glawe at Vice.

(Hat tip: Hit & Run)

Not Quite the End of Big Oil

I stumbled across an amusing bit of scientific confusion at Addicting Info (“The Knowledge You Crave”) in an article titled “The U.S. Navy Just Announced The End Of Big Oil And No One Noticed.” The author, Justin “Filthy Liberal Scum” Rosario, says the U.S. Navy has “achieved the Holy Grail of energy independence – turning seawater into fuel.”

He’s talking about an International Business Times article by Christoper Harress describing a process developed by he U.S. Navy:

After decades of experiments, U.S. Navy scientists believe they may have solved one of the world’s great challenges: how to turn seawater into fuel.

The development of a liquid hydrocarbon fuel could one day relieve the military’s dependence on oil-based fuels and is being heralded as a “game changer” because it could allow military ships to develop their own fuel and stay operational 100 percent of the time, rather than having to refuel at sea.

The new fuel is initially expected to cost around $3 to $6 per gallon, according to the U.S. Naval Research Laboratory, which has already flown a model aircraft on it.

There have been rumors and conspiracy theories about methods for getting power from seawater for decades. I’ve heard it’s a good story for con men who claim to be looking for investors, because it has a built-in explanation for why they’re approaching individuals instead of Wall Street — the oil companies are suppressing it, you see.

However, this is not that rumor. It’s a real thing, although it’s not as good as it sounds, which I’ll explain in a minute. But it sure excites Rosario, who is eager for the demise of Big Oil:

This technology is in its infancy and it’s already this cheap? What happens when it’s refined and perfected? Oil is only getting more expensive as the easy-to-reach deposits are tapped so this truly is, as it’s being called, a “game changer.”

I expect the GOP to go ballistic over this and try to legislate it out of existence. It’s a threat to their fossil fuel masters because it will cost them trillions in profits. It’s also “green” technology and Republicans will despise it on those grounds alone.

Okay, first of all, the $3 to $6 per gallon price is the expected price once the process is industrialized. We’re not there yet.

Second, this won’t lead to energy independence for the United States because this is not a new energy source. What the IBT article is describing is a process for extracting hydrogen and carbon dioxide from the ocean and “un-burning” them to create a hydrocarbon fuel. However, the principle of conservation of energy tells us that if a fuel produces energy when burned, then the process of creating the fuel must consume energy. Ultimately you can’t get any more energy out of a fuel than you put into creating it, and in practice you’ll get somewhat less, due to inefficiencies in the process.

I’m guessing the U.S. Navy is interested in using this process to fuel aircraft and support ships associated with aircraft carriers groups. The U.S. carrier fleet is nuclear powered, but the aircraft and support ships all operate on hydrocarbon fuels. This is a major logistics problem because that fuel has to be replenished periodically from land-based stockpiles while the fleet is operating at sea, which is complex even in peacetime, and during a war, the Navy would have to be prepared to defend the refueling ships from enemy attacks along their entire route.

If this new fuel synthesis technology can be scaled up to industrial proportions, however, the nuclear power plants on board the aircraft carriers could provide the energy to synthesize fuel for the rest of the fleet right from seawater. Alternately, the Navy could deploy special purpose-built nuclear fuel synthesis ships. This would eliminate the need for refueling ships, thus solving a big logistics problem for the Navy.

That bad news for Rosario is that this will not overthrow big oil. That’s because if you have to put energy in to get energy out, then what you’re describing is really an energy storage system, not an energy source. The energy that you put into the storage system still has to come from somewhere else. We could use electrical power to synthesize fuel, but that electrical power still has to be generated, and here in the U.S., over 80% of our energy comes from fossil fuels, and almost half of that is from oil.

If we look only at electric power generation, almost half of it is from coal, with another quarter from natural gas. So we’d end up burning coal and natural gas to get the energy to make the synthetic fuel, and the transformation to electricity and then back to fuel would make it less efficient than just burning fossil fuels directly. There’s no free lunch.

(Oil and other fossil fuels are subject to conservation of energy as well, but we consider them to be energy sources because we didn’t have to provide the energy to make them. The energy content of fossil fuels was captured from sunlight by ancient organisms millions of years ago.)

You could argue that we could switch to cleaner energy to power the oil synthesis, but if it were economically feasible to shut down coal and gas powered electric power generators and replace them with cleaner energy sources, we could have already done so. Our choices of energy source are driven by availability, economics, and our existing investment in power generation infrastructure.

That’s not to say the Navy’s fuel synthesis wouldn’t be useful once we do eventually switch our electric power generation system to cleaner sources, such as solar, wind, next-generation nuclear power, or maybe even fusion (a.k.a. “The energy source of the future”). Because even if we switched our electric power generation to clean energy, and switched our industrial power and residential heating to work off the electric grid instead of burning fossil fuels, we’d still have to power our transportation system, which uses about 30% of our energy, and which is almost entirely powered by fossil fuels.

Switching our transportation system to use electrical energy would be difficult, because the elements of our transportation system — cars, trucks, trains, planes, ships — all have to carry their energy sources around with them, which means they need an energy source that is portable. (Trains travel fixed routes, so they could conceivably be powered electrically from catenary lines or the “third rail,” but that would require more infrastructure investment.) More to the point, most modes of transportation require an energy source that is lightweight, which means they must use a storage medium that has a high energy density — that stores a lot of energy per pound of added weight.

Our love of portable electronic devices has driven a revolution in battery power density, and yet with our current technology, we can just barely build battery storage units suitable for powering a small vehicle. The extended-life battery for a Tesla S model holds 85 kilowatt-hours of energy and as near as I can tell from a bit of Googling, the batteries weigh about 800 pounds. By comparison, the amount of gasoline needed to store 85 kWh worth of energy only weighs about 15 pounds. The lithium ion battery technology works okay for small, lightweight vehicles designed for relatively short trips, but it hasn’t proven feasible for larger vehicles or those that routinely travel longer distances.

The weight problem is even worse for aircraft. A Boeing 737-200 flies with 4780 gallons of fuel, which weighs just over 32,000 pounds, or just over 1/4 of the aircraft’s 115,500 pound maximum takeoff weight. That much fuel contains 187,000 kilowatt-hours of energy, and storing that much energy in lithium ion batteries would require a battery pack weighing 1.7 million pounds, or about 15 times the maximum takeoff weight of the aircraft. So unless we invent a whole new battery technology with unprecedented energy density, we will never be able to fly commercial aircraft on cleanly generated electric power.

However, as I said earlier, the Navy’s new fuel synthesis technology is really an energy storage system, and so it could well be the new “battery” technology for transportation. If it is as successful as predicted and it’s an energy efficient process and it can be scaled up to supply more than just a few carrier groups (that’s a lot of ifs), then we could generate the electric power cleanly and then use it to synthesize fuel for airplanes and road vehicles and anything else that can’t be wired into the electric grid. The synthesized fuel is not pollution free — it’s still hydrocarbons and burning it still produces carbon dioxide — but because the fuel is made by extracting carbon dioxide from the ocean instead of creating new carbon dioxide from fossil fuels, it can only produce as much carbon dioxide as was used to make it, so there won’t be a net increase. The entire cycle is carbon neutral.

However, the Navy’s new technology is not enough by itself. Energy independence and the end of big oil will have to wait until we get an energy source that is better and cheaper than fossil fuels.

Bioethicists Who Give Ethicists a Bad Name

I remember that when I first heard of Jack Marshall, who blogs at Ethics Alarms, my opinion of him was colored by the fact that he claimed to be a professional “ethicist.” I had a strong negative reaction to that word. It sounded to me like a self-aggrandizing title that someone would make up for themselves in the hope that it would make people take their opinions and moralizing condemnations more seriously. I later realized that my low opinion of ethicists was influenced by my low opinion of some prominent bioethicists. In particular, I was disturbed by the views of bioethicist Leon Kass, who was chairman of the President’s Council on Bioethics during the Bush administration.

I first heard about him in connection with human cloning, which he opposed. There are a number of good practical reasons to oppose human cloning, such as the high likelihood of birth defects, but Kass’s reasons — once stripped of their vague references to nebulous concepts of human dignity — amounted to little more than his vigorous assertion that “it’s icky.” He not only acknowledged this, but even exulted in it, titling his most famous anti-cloning article “The Wisdom of Repugnance.”

We are repelled by the prospect of cloning human beings not because of the strangeness or novelty of the undertaking, but because we intuit and feel, immediately and without argument, the violation of things that we rightfully hold dear. Repugnance, here as elsewhere, revolts against the excesses of human willfulness, warning us not to transgress what is unspeakably profound.

In other words, he doesn’t like human cloning for reasons he can’t really explain rationally, but he’s sure that his personal disgust is the correct reaction. That’s little more than an appeal to ignorance and bigotry. I’m sure that many homophobes “intuit and feel, immediately and without argument” that gay marriage is a violation of things they hold dear. And I have no reason to believe that the folks at Stormfront are lying when they say that they are disgusted by interracial sex. (Although, in both cases, see reaction formation.) But the problem with Kass’s position is not just his disgust, but his attempt to hold up his personal disgust as a higher form of truth.

It’s not just cloning that bothers him. Kass has this to say about the general effort to extend human life:

Laboratory assisted reproduction, artificial organs, genetic manipulation, psychoactive drugs, computer implants in the brain, and techniques to conquer aging — these and other present and projected techniques for altering our bodies and minds pose challenges to the very meaning of our humanity.

[...]

I wish to make the case for the virtues of mortality. Against my own strong love of life, and against my even stronger wish that no more of my loved ones should die, I aspire to speak truth to my desires by showing that the finitude of human life is a blessing for every human individual, whether he knows it or not.

[...]

Confronted with the growing moral challenges posed by biomedical technology, let us resist the siren song of the conquest of aging and death.

That’s not the attitude toward medicine that I want to hear from a man who had the ear of a President.

I do realize Kass is not representative of most bioethicists — he acknowledges as much with his criticism of other bioethicists — and I know that bioethicists give a lot of practical policy advice…but for a while there it seemed like every time I heard the word “bioethicist” in the news, some self-important twit was opposing medical progress or personal medical freedom in the name of vague ethical concerns.

All of which brings me to a story that Jeff Gamso posted about a few weeks ago about a death row inmate named Ronald Phillips who wanted to donate his organs after his execution to help out a sick relative.

This raises a bunch of thorny ethical issues: Is his consent to the donation truly voluntary? Does using organs from executed criminals create an incentive to execute people for their organs? Can the execution procedure and the organ harvesting procedure be combined without violating medical ethics?

Personally, I think that last issue is an insurmountable hurdle, at least the way executions are carried out today. They’d have to find a way to make Phillips so decisively dead that a surgeon would have no ethical reason not to take his organs but not so completely dead that it would damage any of those organs. And this careful killing would likely have to be done in a sterile operating room with medical personnel standing by so that the surgeons can start work immediately after he dies, but no medical personnel could be involved in the killing itself. That’s so different from how executions are done today that I don’t think we could get there from here.

But I’m hardly an expert, and this seems like exactly the sort of issue where bioethicists could make a valuable contribution. If we take it as a given that the state is going to execute Phillips — that he’s going to die regardless of any doctor’s wishes and regardless of what happens to his organs — it seems like there ought to be some way to achieve the entirely ethical goal of saving an innocent life that the condemned man himself wants his organs used to save. Perhaps there’s a way to design a careful protocol for an execution and an organ harvest that would work around the state’s killing and allow the doctors to save a life without contributing to a death. This seems like something a thoughtful bioethics expert could figure it out.

Unfortunately, the bioethicist interviewed for the AP wire story isn’t that thoughtful. He apparently opposes Phillips’s organ donation for the dumbest and most unethical reason I’ve ever heard of:

Medical ethicist Arthur Caplan of New York University said organ donation is incompatible with the goals of punishment.

“It’s unethical because this guy who’s being executed raped and killed a 3-year-old. When you donate your organs, there’s a kind of redemption,” Caplan said. “Punishment and organ donation don’t go well together. I don’t think the kinds of people we’re executing we want to make in any way heroic.”

Phillips wants to donate a kidney and his heart to save two of his relatives. I don’t know what will happen to them if they don’t get his organs. Perhaps they are high enough on the waiting lists that they will get organs from someone else, but that just means that someone else won’t get those organs and will have to wait. Organ transplants are life-saving procedures, and there is a nationwide shortage of both hearts and kidneys, so if Phillips can’t donate his organs, there will be an inevitable cascade down through the waiting lists, and at some point somewhere, two people will die.

That’s an awful high price that Caplan wants a pair of unknown strangers to pay, all because he doesn’t want anyone to mistake a child murderer for a hero. It’s this kind of thinking that makes me cringe when I hear the word “bioethicist.”

(To be fair to Caplan, much of his writing seems thoughtful, and he points out that using untested drugs for execution is arguably a form of human experimentation that likely wouldn’t pass IRB review, which strikes me as a pretty good point. Also, in a more scholarly piece in The American Journal of Bioethics he gives a brief survey of many of the issues related to using prisoners — condemned or not — as sources of organs, and although he mentions the conflict between the goals of execution and organ donation again, he clearly describes it as only one issue among many.)

Game of Thrones – Season 4

The fourth season of Game of Thrones begins today, and I have a few predictions. I realize this is a fool’s game, since people who’ve been reading the books already know what happens next, but those of us who’ve skipped the reading might as well speculate. The story is too large for me to address all of it, but here are a few things I expect to see, in no particular order:

Jon Snow

Jon Snow is a skilled warrior with a sense of justice and compassion, yet as the bastard son of Lord Eddard Stark, he’s got plenty of motivation to prove himself, and he’s headed for a confrontation with the supernatural White Walkers and their army of the undead. In every way, he’s a classic fantasy hero. In the first season, he succeeded in reaching the Night’s Watch fort at the Wall and completing his training. In the second season, he gets separated from his patrol company and wanders around in the frozen wasteland. In the third season he wanders around in the frozen wasteland some more until he is badly wounded by his girlfriend, after which he returns to the fortress he was at in the first season. Now in this fourth season, I predict the action will continue apace, and we will get to watch as Jon Snow slowly recovers from his wounds until — during the traditional 9th-episode action climax — he visits the Castle Black kitchen and makes himself a sandwich.

Tyrion Lannister

Tyrion was introduced as one of the most amusing characters in the series — a bawdy, profane, and care-free party animal with a rapier wit. His world gets more serious and less fun every season, and the beginning of season four finds him separated from his love Shae, saddled with a wife who does not love him, and still a member of the dreadful Lannister family. I predict the death of fun will continue.

Brienne of Tarth

Brienne is a highly skilled warrior with strong principles and unbending loyalty. She can be trusted to keep her promises, no matter how difficult that turns out to be. She’s one of the most admirable characters on the show. Her fate is clear. In fact, I’m amazed she’s lasted this long. It’s probably because they didn’t introduce her until the second season. I assume she’s already dead in the books.

Daenerys Targaryen

I predict that Daenerys will continue her struggle to build an army to re-conquor Westeros in the name of the Targaryen line. By the end of the season, she will have taken important steps towards that goal and her dragons will have grown, just like in season three. And season two. And season one.

Arya Stark

Like Daenerys, this is a character whose destiny was clear from the beginning — from the moment her eyes lit up when Jon Snow gave her that sword. And like Daenerys, she will take a few more steps on that journey, in the 8% or so of screen time allotted to her story.

Sansa Stark

Will continue to have a very, very bad time, although I think she’s about out of family members for the Lannisters to kill.

Joffrey

Will remain an insufferable prick.

Hodor

Hodor.

Lessons in Allocution and Acquitted Conduct

Apparently yesterday was sentencing hell day at Simple Justice.

First up, Scott reminds us of the case of Antwuan Ball, Joseph Jones, and Desmond Thurston who were accused of engaging in a massive drug dealing conspiracy. The case went to a jury trial, and they beat all of the conspiracy charges. The jury only found them guilty of some relatively small-time drug dealing.

When it came time for sentencing, however, the prosecutor argued that they should receive harsh sentences for the crimes they had been convicted of because they committed those crimes as part of a massive drug-dealing conspiracy, even though they had been acquitted of those charges.

This process of sentencing on acquitted conduct turns out to be a pretty common practice. I’m very shaky on the legal reasoning, but I gather the basic principle is that a convicted person can only be sentenced for crimes he’s found guilty of committing, but once he’s convicted, the judge has broad latitude to mete out any sentence up to the maximum spelled out in the criminal code, and in making his sentencing decision, he can take into account factors that have not been proven to the jury. I can’t even pretend to understand the details.

What I do understand, however, is that this is bullshit.

One of the things I’ve learned from my amateur interest in economics is that it is more useful to judge policies by their results, fully accounted for, than by their intent or the mechanism used to enact them. Thus, a legislature that passes price caps on gasoline may intend to make driving more affordable for motorists, but when gas station owners stop selling gas because they cannot do so profitably, the result is going to be a gasoline shortage. The price cap mechanism and the legislature’s intent to ease the life of motorists may be well-intentioned and competently implemented, but any evaluation of the effectiveness of the price cap policy should include the fact that it makes it harder for motorists to fuel their cars.

Most of us think that the verdict in a jury trial is pretty important: You can’t be sent to jail for charges they can’t make stick, right? But in a case like this, where the judge can take into account everything the defendant is accused of (even if he’s acquitted of those crimes by the jury) the prosecution can obtain a hefty sentence — just as if they had succeeded at getting the jury to convict on many charges — as long as they can prove at least one of their accusations and then convince a judge to choose a sentence at the high end of the range based on all the remaining accusations, even if the jury was not convinced. Thus prosecutors can increase a defendant’s sentence (on average) by lodging many accusations, even if few of them can be proven to a jury.

In other words, if we look at the sentencing results produced by the policy of sentencing on acquitted conduct, we can see that the ability of the jury to influence the defendant’s sentence is being diminished by this policy. This is pretty disturbing in a country that is supposed to guarantee a right to a trial by a jury. How real is that right if the jury has so little control over the resulting sentence?

This whole idea angered Jim Caron, a former economist for the U.S. Department of Agriculture, who also happened to be one of the jurors that acquitted Antwuan Ball of so many charges. When he heard about the prosecution’s request, he wrote a scathing letter to the judge. I can’t find a copy of the whole letter, but here’s an excerpt:

As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly. No conspiracy shown but more importantly, where was the money? No big bank accounts. Mostly old cars. Small apartments or living with relatives.

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts.

What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case. That is how you instructed your jury in this case to perform and for good reason.

This story does not have a happy ending for the defendants. The prosecutors didn’t get quite the sentence they wanted, but the defendants still got tough sentences which were just upheld by the D.C. Circuit Court of Appeals a couple of days ago. Scott has more explanation and outrage.

Scott also posts about an Alabama Law Review article that reveals some disturbing (although not particularly surprising) things about how federal judges react to defendants’ allocution, which is basically their last chance to say something to the court prior to sentencing. I didn’t read the article, but Scott’s summary starts with some hope:

What this suggests isn’t that judges aren’t open to being influenced by allocution, but that the defendant’s statement (as well as defense counsel’s argument) do not sufficiently alter the calculus.  In other words, the opportunity may be there, but it’s either not being used very well or, more likely, there isn’t much that can be said that will change the judge’s views.

But significantly, when allocution does affect the sentence, it serves to lower the sentence, mostly within the guideline range, but closely followed by a below guidelines sentence.  The message here is that it is definitely worthwhile to put in the effort, and get it right.

Unfortunately, that proves to be difficult:

The problem, as is made clear in what follows, is that every judge has an approach that they think is perfect, and they differ markedly.

In their open-ended responses, some judges commented on the value of hearing defendants’ plans for the future, with one judge noting, “Some suggestion that the defendant has a concrete game plan for turning his life around would be helpful.” Many judges commented on the value of hearing the defendant reflect on his or her victims. But as one judge observed, defendants should “resist the powerful urge to whine and blame others.” Also, although defendants might think it wise to ask the court for forgiveness, at least for one judge, it is actually better to ask for leniency instead: It is not a “judge[’]s role to grant forgiveness. Asking for leniency and providing reasons why [a] certain sentence is appropriate works much better.” As this semantic difference demonstrates, defendants must forever be on their toes, navigating the bear-filled woods of each sentencing judge’s preferences—and defense counsel should be their guide.

What struck me about the specific advice is that many judges appear rather petty and trivial in what matters, reflecting a remarkable lack of understanding about the people whose lives are in their hands. Silly aspects, such as semantics, matter greatly to them, as they apparently are unaware that most defendants didn’t go to Harvard Law School and were lucky to have graduated from high school.  Yet, they expect such finely honed allocutions to reflect levels of mitigated speech, delivered with precision and yet sincerity, to appeal to their prep school sensibilities.

One of the the judges in the study advises that lawyers “Don’t let them read these long, prison-written letters. They tend to become maudlin, self-indulgent, and annoying . . . . Some defendants get carried away and start to whine that it wasn’t their fault, etc. That hurts any good that the attorney may have done.”

Scott’s response is moving:

Every lawyer knows the “long, prison-written letters,” put together with the best advice of their jail-house sentencing mavens, which is likely the longest thing they’ve ever written in their lives. They can be enormously proud of their speech, and desperate to deliver it.  They may swear it’s sincere, and demand their right to read it to the judge.  We may try desperately to explain that it’s not as effective as they think it is, to no avail. They want to be sincere, to be real, but it’s not the same sincere and real that judges want to hear.

That’s because, as the paper notes:

After preparation, defendants must come to court and deliver the allocution in a style that connects with the presiding judge. Overwhelmingly, judges in the survey indicated that they want defendants to show genuine remorse and sincerity. One judge bluntly recommended to defense counsel, “If your client cannot be sincere, and that is frequently the case, tell them to shut up.”

The problem with that idea, as the study paper points out, is that judges aren’t very good at detecting sincerity.

In fact, from what I’ve read elsewhere, I think it is safe to say that there is no such thing as a general human ability to detect sincerity. Study after study has shown that when we do correctly identify that someone is lying to us, it is not because of their demeanor, or their body language, or the tone of their voice. We detect their lies primarily through analysis of their statements and our knowledge of the subject matter. We look for internal inconsistencies within their story, we check their statements against facts we can verify, we compare their story to similar stories that we know the truth or falsity of, and we try to nudge them off their story to see if it changes.

Obviously, if the defendant’s allocution conflicts with his earlier testimony, or with other trustworthy evidence from the trial, a judge could conclude that he’s lying. But how can the judge tell if he’s sorry? How can the judge tell if he really wants to be a better person? How can the judge tell what’s in his heart?

Judges do have a lot of experience hearing allocutions, but I don’t think they get too much feedback. If they disbelieve the sincerity of a defendant’s remorse and sentence him to longer than he deserves, how will they ever know if they made a mistake? And if they don’t find out about their mistakes, how will they learn?

Frankly, I’ve always been a little horrified at the idea of “taking responsibility” and related concepts in sentencing. It seems like some kind of Soviet show trial, where the defendant is found guilty and then coerced into confessing his crimes. Because that’s what it is when you threaten to give somebody a longer sentence if they refuse to admit guilt: A coerced confession.

As Scott points out, this leaves defendants who believe they are innocent with a difficult choice:

The most notable, and glaring, omission in this article is what a defendant can do if he maintains his innocence through sentence.  This may suggest that no federal judge believes that any defendant being sentenced is innocent, or that they just don’t want to deal with difficult situations.

Given that they clearly want sincere expressions of remorse, it presents a dilemma for the defendant who maintains that he was wrongly convicted, which means he is unable to gain the advantage of a reduced sentence based on a sincere expression of remorse because he isn’t guilty, or he must give up his position of innocence to feign remorse to appeal to the judge.

Even with defendants who are factually guilty, this approach penalizes people who aren’t well educated or good at explaining things or used to speaking to judges. It’s hard to see what any of those things have to do with how much prison time is necessary, but apparently that’s how the system works.

On the other hand, this is also a system that rewards those who are slick and well-spoken and well-prepared by their attorneys. It rewards those who can acknowledge their bad acts and then look the judge in the eye at just the right point and, with just a hint of real tears, say they’re sorry and they’ve learned their lesson and with God’s help they will do better. It rewards those who are good at figuring out what other people want to hear and then saying it convincingly and with apparent sincerely. It rewards, among others, psychopaths.

Somehow that doesn’t seem like a very good way to fight crime.

A Few Ways to Look At Criminal Lawyers

(This post started with a few ideas, and then got all long and rambling, but I don’t have time to make it shorter. Sorry.)

A few years ago I had a toothache, and I made an emergency appointment with my dentist.

Her diagnosis was that the tooth’s pulp was infected around the nerve, and her treatment procedure required a lot of painstaking work using her carefully-honed skills: She started by performing a root canal procedure, which involved anesthetizing the nerves for that tooth, drilling into the tooth, scraping out the damaged and infected tissue, and sealing the hole. She then installed a temporary cap on the remaining portion of the tooth while she arranged to have a synthetic crown fabricated. When that was finished, she removed the temporary cap and cemented the crown in place to restore the damaged tooth to its approximate original shape, appearance, and function.

As a dentist, she has the equipment, the training, and the experience to do all that for me, and from her point of view, that work is what she sold me to earn my money. But that’s not why I went to her office. I didn’t just wake up and decide, “I’d like to get a root canal and restoration today.” When I called her office, what I wanted was for her to make the pain go away.

That’s a key distinction for anyone selling a product: You have to remind yourself to think not about the product you produce, but about the benefit your product produces for your customers. There’s a difference between what you’re trying to sell and what your customers are trying to buy.

During periods of rapid change, the gap between what a producer is selling and what consumers are buying can grow so large that it separates producers from consumers completely, and changes the market on a massive scale. Companies like Kodak and Fuji used to compete in the huge market for 35mm camera film, which people used for everything from professional photojournalism to snapshots of kids’ birthday parties. As it turns out, however, the film companies were selling film, but what their customers really wanted to buy was pictures. So when digital imaging got good enough and cheap enough, almost everybody switched to digital photography, and the whole film market crashed to a fraction of its former size.

Smaller examples are plentiful. For the most part, grocery stores sell the ingredients for preparing meals, and their customers buy ingredients they plan to use in meals, which works out to about the same thing. But when someone knows they won’t be able to devote a lot of time and effort to preparing a meal, they’re not just looking for basic ingredients any more. They’re looking for a way to save time. And the marketing materials for products like minute rice and microwave meals tend to emphasize that. They may be selling rice, but they know their customers are buying themselves some spare time.

Cooking food is also a way for people to show they care, and many foods are marketed not just as tasty morsels, but as tasty morsels that will show your family how much you love them. Or at least as tasty morsels that will make you feel you’re showing your family how much you love them.

That’s also a big selling point for a lot of children’s medicines. Pharmaceutical manufacturers may be selling dextromethorphan or guaifenesin or pseudoephedrine, but they prepare their marketing plans knowing that customers are buying the comforting feeling that they’re taking good care of their children. With some over-the-counter products, that feeling of taking care of their children may well be the only real benefit the product has to offer. (I’m looking at you, Vicks VapoRub!)

I suspect there are similar gaps between producer and consumer when it comes to selling criminal defense services. Over at Simple Justice Scott Greenfield posted this awesome-yet-horrible-yet-hilarious ad from Pennsylvania criminal defense lawyer Dan Muessig, who clearly has his own theories on what his clients are really buying from him:

There’s already been plenty of talk about the ethics of the ad from Scott and others who know a lot more about legal ethics than I do, so I won’t re-hash any of that here. But what struck me about the ad was the fact that the people depicted as his clients are almost universally shown as being guilty. Not in the legal sense perhaps, but certainly in the colloquial sense that they actually did something bad.

Each client scene includes overlaid text such as, “Crimes Committed: Burglary, Home Invasion, Armed Robbery, Aggravated Assault.” There’s no equivocation here, the crimes are described as “committed,” not just “charged,” and in most of the scenes, the clients say “Thanks Dan!” while clearly in the process of committing further similar crimes. And he doesn’t describe his clients as “clients” or “defendants” or “the Citizen Accused.” He calls them, quite frankly, “criminals.”

I thought this was an interesting change of pace from a lot of lawyer advertising, which is usually heavy on standing up for you and protecting your rights while politely avoiding mentioning that many of their clients quite likely committed crimes. DUI/DWI lawyer advertising is especially tedious, depicting almost every client with some variation of “I only had a couple of drinks, but the police stopped me, and now they’re charging me with a DUI!” That seems like a sensible way to advertise for DUI clients, most of whom do not think of themselves as being criminals (the way a car thief or a drug dealer would), but as normal people who just got in a bit of trouble and need a lawyer to get out of it. And their lawyer is going to do some kind of legal thing — with motions and evidence, and maybe witnesses and testimony — but like me at the dentist, all they really want is for the pain to stop.

The fact is, though, their lawyer would be just as happy to take their case if they got totally wasted, hit six parked cars, damaged a pursuing police car, and blew 0.45 on the breathalyzer. For the third time. Because criminal lawyers solve legal problems, including legal problems that people bring on themselves through stupidity and evil acts.

Lawyers don’t usually talk publicly about those kinds of clients (I assume out of a combination of duty to the client and the desire to not make it easier for lawyer-haters to harass them), which led me to leave this comment:

I do have to admire how unapologetic the ad is. I once offended a criminal defense lawyer when I offhandedly described his job as something like “Helping criminals get away with crimes.” I understand why he objected to that characterization, because that’s not quite what he’s selling, but if I were the client (and I more or less did the crime), then that’s pretty much what I’d be looking to buy.

I was referring to the exchange I describe in this post, and re-iterating the point I made there, which was that it’s all very well for criminal defense lawyers to say they are defending people’s rights and holding the state to the burden of proving it’s case, but when it comes right down to it,

I’m pretty sure that if I’m charged with a crime, it’s my lawyer’s job to try to stop the state from convicting me even if I did it.

In his excellent response to that post, criminal defense blogger Gideon restated my point as,

Is “I’m defending the Constitution” merely the sugar-coating on “helping them get away with it”?

(Ultimately, he decided that in most cases, criminal defense lawyers don’t help criminals get away with anything, a conclusion I basically agree with.)

However, Gideon’s restatement of my point wasn’t really what I had in mind. I don’t think talk of “defending the Constitution” and “protecting people’s rights” is some kind of smoke screen or ruse, covering up for something more nefarious. What I’m claiming is that the lawyer/client relationship is another example of the producer/consumer gap: Lawyers and their clients have different views of the same activity. If the client really did something wrong, he’s probably hoping his lawyer will help him get away with it.

(That’s certainly true of my own criminal career, which consists entirely of violations, such as speeding tickets and parking at expired meters. There were a few instances where I had no idea if I did what the officer said, and there were one or two times where I thought I might not have been guilty of the exact thing I was ticketed for, but most of the time I was probably guilty of something. And in many of those cases, I went to court — once with a lawyer — to try to avoid the maximum possible consequences for my crimes. It mostly worked.)

As an aside, after I posted my comment, another commenter asked,

What would you be looking to buy if you hadn’t done the crime?

Obviously, if I’m innocent, then I’m not trying to get away with anything, because I didn’t do anything. I’d be an innocent man trying to avoid a conviction for crime I didn’t commit. But because the Innocent Man Wrongly Accused is such a staple of every courtroom drama ever written, I responded to the question with a tongue-in-cheek reference to the most famous lawyer in the world when it comes to defending only factually innocent clients:

Well then I wouldn’t be needing a lawyer to help me get away with a crime, now would I? I’d be An Innocent Man, Wrongly Accused of a Crime I Did Not Commit. Everyone knows you hire Perry Mason when that happens…

The commenter’s response just confused me:

I think he’s dead. Are you implying that now that he no longer needs employment, the DAs never charge the innocent?

Uh…no. First of all, Perry’s not dead, he’s fictional. (And available on DVD.) And as for the part about whether I’m implying that DAs never charge people for things they are innocent of….no, that’s not what I meant. I read too many criminal law blogs to believe that.

I’m bringing this up because Scott quoted my first comment above in a more recent post and then went on to ask questions similar to Gideon’s:

All of this raises a very real question, which is something good parody ought to do.  We can wrap ourselves in the glorious duty of defending the rights of all, protecting the Constitution, but is that just a subterfuge for what we really do?  Is that what the accused hire us to do?  Is that what criminals want us to do?

I think those are are very different questions, and my answer to all of them is that just because criminals want to get away with crimes doesn’t mean that “the glorious duty of defending the rights of all, protecting the Constitution” is a subterfuge. Both of those things can be true descriptions of the same activity.

(If you ask me what I do for a living, I’d say I write web applications in C# that run on Windows servers. But to my employer’s customers, I’m helping to provide a service that enables them to run parts of their business more efficiently. Both of those descriptions are accurate.)

I guess also that if I’m going to say things like “defense lawyers can help criminals get away with crimes” I should make it explicit that I don’t think there’s anything wrong with that. I think bad people sometimes get away with crimes because they have good lawyers, but that has to happen from time to time if we’re going to use a system of adversarial law to protect our rights. I sure don’t blame criminal lawyers for doing the job our society needs them to do.

My general impression of the criminal defense lawyer’s proper role is pretty much based on Ken Lammers’s summary of the criminal defense lawyer’s job:

Basically, whether you are trying to get a good deal or a verdict of not guilty (as few and far between as those are), as a defense attorney you almost invariably represent a client’s liberty interest against society’s long term interest in making him conform and the government’s use of power to either force conformity or seek vengeance.

Note that absolutely nothing in there depends on whether the client is factually guilty or innocent, or who is right and who is wrong, or whether the offending behavior should even be against the law. Lawyers work for the good of their clients, not for the good of society, even if — as in the Muessig video — the freed criminals go on to commit more crimes.

As The Blonde One says:

If a guilty client goes free, I don’t feel bad – I think that’s the way the system works, and the police and prosecutors should have done their job. Our system is imperfect – innocent people go to prison, guilty people go free[...]

Sure, it would be disturbing to know that the person you represented later killed someone. But I don’t think defense attorneys are responsible for every later act of their clients. If I represent a completely innocent person and after his acquittal he goes out and kills someone, either accidentally or purposely – am I somehow responsible for that death? No. Likewise, it’s not my Nobel Prize if he wins one either. I only deal with the crime charged, the single accusation – not my client’s whole life – good or bad.

That sounds about right to me. Because in addition to the view that lawyers have of their job, and the view that their clients have of their job, I have my own view.

Since I seem to be in the mood for quoting people who are a lot smarter about the law than I am, I’ll just use this excerpt from Justice Edward Douglass White in Coffin v. United States:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?”

Without someone assigned to stand up for the accused, we would all be at the mercy of unscrupulous accusers.

And it’s not just the innocent who need protection. There are a lot of crimes you can commit without knowing it. Pretty much all of my traffic violations were like that: I didn’t realize I was speeding, I didn’t realize there was a No Left Turn sign, and so on. Everyone commits crimes like this — paperwork mistakes, various kinds of negligence, trusting the wrong people a little too much — and there’s not a lot we can do about it. Harvey Silverglate famously guessed that we all commit three felonies a day, and the punishments for some of them can be shockingly disproportionate.

That standing up for the accused sometimes frees the guilty is part of the price we pay for trying to create a system that is truly just. I may think that both O.J. Simpson and Casey Anthony got away with murder — and I suspect George Zimmerman got away with something — and some of them may have gone on to do other bad things, but to the extent that their lawyers helped them do that, I don’t blame them a bit.

So why bring it up at all?

Mostly because it amuses me. I am struck by the contrast between the people who become criminal lawyers and the kind of work that they do. Criminal lawyers are smart people who got good grades in college, did well on the LSATs and got into law school, and then spent three years in a very difficult curriculum. They are highly educated, highly motivated people with some very expensive training. And then they decide to spend the rest of their lives working for drug dealers, car thieves, prostitutes, embezzlers, tax cheats, rapists, and murderers.

(Some of them have made very interesting life choices. Mirriam was born in Kandahar, Afghanistan, came here to one of the richest countries in the world, got herself a law degree, and then decided she wanted to defend our criminals. Rick Horowitz was a successful IT professional who decided it would be a terrific idea to get a law degree so he could make a ton of money in the fast-growing and lucrative field of technology law. But somewhere along the way, he decided he’d rather spend his career defending kids accused of gang crimes.)

To me, Dan Muessig’s video was a funny subversion of that contrast, as he tries to establish some street cred to attract clients. He’s more direct about his branding in this Slate piece:

Slate: Beyond connecting with clients, how can what you call “street knowledge” be an advantage for a defense attorney?

Muessig: The most important thing to me is helping a client out. … You have to know what your client wants out of the situation. You have to be able to say, “I know you, I understand where you’re coming from, and what your aims are,” and be able to build your defense around their needs. You don’t want to be the typical white guy in the suit who’s going to impose his worldview on the client. That’s, honestly, the attitude of most lawyers working today. There’s been some diversification in the field over the past 50, 20, 10, five years, but it’s still an overwhelmingly old, white, male, moneyed profession. It’s a lot of patrician guys talking down to people who are in their office. There’s a lot of condescension. If you come at it with a knowledge of the streets, what these people are facing, and how it affects their lives, you can really focus on how best to help them.

I don’t think his ad really works on that level. For one thing, I have no street cred, so I can’t tell if he’s faking, but people who are really streetwise will spot it if he is. He’ll be like all those business people in the record industry who try to act “hip” and “with it” to be more like their musician clients, but just end up looking like dorks.

Also, an awful lot of potential clients are more-or-less normal people who don’t think of themselves as criminals — DUI offenders, white collar criminals, casual drug users, people caught driving on a license that got suspended because of some bureaucratic mess — and I think they would be put off by a lawyer who associates with “criminal types.”

On the other hand, the people he’s trying to appeal to — the lucrative repeat-offender market — are probably knowledgeable consumers of criminal defense services who aren’t put off by lawyers who look and act like lawyers. In fact, image consultants have generally found that people do not want the professionals they hire to look and act like themselves. They want their doctors, accountants, and lawyers to look and act like doctors, accountants, and lawyers.

Then again, as silly as Dan Muessig’s ad is, he certainly knows a lot more about the criminal law business than I do. Besides, I kind of have to like a lawyer whose Avvo profile lists his practice areas as 99% Criminal Defense and 1% Admiralty law.

The Forensic Geology Series – Review

When I don’t have any new novels from my favorite major authors, I like to browse the cheap e-books at Amazon to try to find new authors. Many of them turn out to be unappealing — not so much because they are badly written but because, like most indie art, they have a somewhat narrow appeal. Of course, when that narrow appeal is aimed straight at me, it’s like digging a random hole and striking gold.

Discovering Toni Dwiggins‘s Forensic Geology series was like that. It’s not that I like geology in particular — I know very little about it — but I do like science, and Dwiggins’s stories all come with a heavy serving of geological science. It feels like real science too, without a lot of gee-whiz speculation. Dwiggins is exploring Michael Crichton territory, but she’s doing it with a far more accurate map.

Badwater introduces us to the forensic geology team of Cassie Oldfield and Walter Shaws as they are brought in to help figure out what happened to a stolen cask of ion-exchange resin beads used to clean radionuclides from the cooling water in a nuclear power plant. Yeah, you read that right. Radioactive beads. There’s no threat that someone will turn this stuff into a bomb, and it won’t melt your face off like the Nazis at the end of Raiders of the Lost Ark. What it will do is give you a fatal dose of invisible radiation that you won’t even notice until it’s far too late. That will happen quickly if you run into a large amount of the stuff, but if you spend too much time around even a small amount, you could be just as dead. I think it’s very cool that Dwiggins didn’t try to jazz up the story by making the radioactive waste into some sort of super-secret super-special radioactive stuff, but instead chose to build her thriller around a realistic depiction of the hazards of radioactive materials.

Volcano Watch takes us to Cassie and Walter’s home town of Mammoth Lakes, where the mayor has just been murdered and the local volcano has been rumbling ominously. Actually, it’s not just a volcano, but a whole volcano system, and the mayor had apparently learned something alarming about it, but nobody knows what. It’s not the usual disaster cliché — there’s no young volcano expert trying desperately to warn the town about the impending eruption while feckless politicians try to suppress the truth because they don’t want to lose tourism dollars. Instead, Dwiggins builds her story around evacuation planning until the volcano erupts (it’s not really a spoiler) and then it switches to a story of survival. The eruption of the volcano is described in extensive detail, and the volcanology feels accurate and not sensationalized.

Quicksilver is the third and most recent installment in the series, although it is technically a prequel. It’s also a novella rather than a full-length novel, so it tells a smaller, tighter story. All of the books in the series feature a significant amount of exploration and outdoor adventure, but Quicksilver focuses on a single expedition, as Cassie and Walter get caught up in a family’s obsessive search for a legendary vein of California gold. It turns out that some gold mining operations use a mercury amalgamation process to extract the gold from the earth, and before it was outlawed, a great deal of mercury was lost into the environment. Mercury is an amazing substance — a metal that’s liquid at normal temperatures — but under the wrong conditions it becomes a deadly cumulative neurotoxin. This fact turns out to be pretty important in Quicksilver.

If the Forensic Geology series sounds like the kind of thing you’d like to read, you might as well read through them in order, starting with Badwater, as I did. If you’re not so sure, I recommended reading Quicksilver first. It’s short and tightly written and it’s a good example of the kind of story that Dwiggins likes to tell. It’s also currently available for download at the low, low introductory price of free. Or you could go all-in and just download the whole set for $3.99.

(I interviewed Toni Dwiggins briefly about the self-publishing business for a post I wrote a couple of months ago.)

Scattershot 2014-02-28

Random shots around the web:

What is it with Illinois and bizarre double jeopardy cases? In the 1990′s we had the Harry Aleman murder trial do-over which wiped out his earlier acquittal (a classic Chicago tale), and now the state is requesting to re-try Esteban Martinez after refusing to present its case in the first trial. (Gideon covers it too.)

Greenwald and Snowden reveal that the British GCHQ has been using its intelligence agencies to go after political enemies and dissident groups rather than just the terrorists they’ve been using to justify their budgets.

Gideon has a fascinating explanation of a new twist in consent search law, courtesy of the Supreme Court in Fernandez v. California.

A jury awarded 2 million dollars for the killing of Pastor Jonathan Ayers by (of course) a drug task force.

According to Scott Greenfield’s review of his book, Professor Robert Blecker thinks that we need to spend more effort to rehabilitate prisoners we are planning to release, but for those who will never get out, we need to expend more effort to make their lives miserable. From what I can tell from his video (below), because nobody in the correction system is specifically tasked with punishing inmates, prison must not be a form of punishment. So I guess if Scott and I kidnapped Dr. Blecker and locked him in a cage in my basement, but treated him very well, with a nice colored television and weekly calls home to his family, he’d be totally cool with that.

In other news, Scott Greenfield is also fighting with people with gigantic egos.

And now to lighten things up a bit, the Bryan Williams Rap:

(Hat tip: Stillettos and Sneakers)

Why Helix Kinda Sucks

(Spoiler Alert for potentially all 8 Helix episodes to date.)

I loved the Andromeda Strain, both the book and the movie, and so I’m always willing to give a good plague story a try, which is why I really wanted to like Helix, the new series on SyFy, about a CDC team sent to investigate a mysterious situation at a biological research complex somewhere in the Arctic.

Unfortunately, Helix has turned out to be one of those shows that I only keep watching because I hope it will eventually get better. Mostly it just irritates me, and I feel like ranting about all the ways it kinda sucks:

  • Helix starts so promisingly, with Doctor Alan Farragut (played by Billy Campbell) at the Centers for Disease Control holding up a pump handle and talking about Dr. John Snow’s famous investigation of the Soho cholera outbreak in 1854. That’s a terrific real-life story about solving a public health crisis with science and ingenuity. Too bad the plot of Helix is nothing like that.
  • Helix is a zombie show that doesn’t want to admit it’s a zombie show. People infected with the mysterious virus become deranged and go wandering around the complex attacking other people, who then become infected themselves. They may be a little smarter and faster than the walkers on Walking Dead, but call them whatever you like (Helix uses the epidemiological term “vectors”), they’re still zombies.
  • Ducts. A great deal of the plot depends on the fact that the zombies can move around the entire high-security complex in spacious, well-lit ventilation ducts that have no internal supports or grates or anything else to get in their way. This is such a hackneyed plot device that I’m surprised anyone would still use it seriously outside of video games.
  • They killed off my favorite character, Doctor Doreen Boyle (played by Catherine Lemieux), a veterinary pathologist, who was the only person on the show with any detectable personality. She seemed like she’d be fun to talk to at a party, and she brought some badly-needed levity to the situation. And so the writers killer her.
  • Every other character seems earnestly serious and deadly dull. Except when the plot needs them to be stupid.
  • One of the key story elements is that the complex is completely cut off from the outside world because of an unstable satellite connection that stops working altogether when someone blows up the big dish outside the complex. This makes no sense in a world where Iridium satellite phones are small enough to fit in a jacket pocket and work all over the planet. Also, has nobody at Arctic Biosystems (or the writers’ room) heard of shortwave radio, which ships at sea and Arctic explorers have been using for years? Wouldn’t you think a CDC team would want to have good communications?
  • Thin depth-of-field. That’s where the image on the screen is focused tightly at something a certain distance from the camera and everything in front or behind thrown out of focus. With modern cameras and lighting, there’s no reason for the depth of focus to be as thin as it is in Helix, except as an artistic choice because it looks dramatic. And the drama wears thin when you do it in every single scene.
  • Speaking of annoying artistic choices, I realize the bland elevator music on the soundtrack is supposed to create some kind of ironic contrast with the story, but that trick gets old fast.
  • The exterior of the Arctic complex is monumentally boring and unimpressive. I don’t know how much CGI goes into creating it, but the lack of detail or any sense of scale always makes it look like a cheap model. (The artificially thin depth of field contributes to this, since a thin depth of field is an optical cue for something close to your eye.)
  • The interior of the research complex is no better, looking alternately like an office building or the basement of an office building. There’s no sense of how the parts of the complex are related physically to each other — which rooms are adjacent, and which are far apart — and there’s no sense of where any of these locations are in relation to the exterior shots.
  • At one point, Dr. Farragut needs to break into another part of the complex and he mixes up a batch of thermite which he uses to burn through a grated floor. Thermite could certainly burn through a metal floor, but it’s a powder, so most of it would fall through the grate, and it’s hard to see how the combustion reaction could spread between the little piles that remain on the grate. Also thermite has a really high ignition point and there’s no way he could ignite it with an ordinary flame. There’s a whole science to igniting thermite. It’s a small thing, but it makes me think the biology and medical science are probably just as bad.
  • There is already a B-movie subgenre of we’re-all-trapped-in-an-underground-facility-with-monsters-and-scientists-and-military-types-who-all-have-secret-agendas. It’s a popular story with straight-to-cable releases because you can film the entire thing in an abandoned factory and all the conspiracy dialogue (a) makes for easy-to-write plot twists and (b) kills time between the more expensive action shots. Helix differs only in style.
  • Despite being set in the Arctic, the show never gives me that sense of oppressive, dangerous cold. I don’t know why that is.
  • The writers have decided to build the story around an ever-deepening layer of conspiracies. Every character seems to have at least one secret agenda. The base director, Doctor Hiroshi Hatake (played by Hiroyuki Sanada), is very secretive about the base’s mission and he also seems to have an equally mysterious personal agenda. Then we meet his superior, Constance Sutton of Ilaria Corporation (played by Jeri Ryan), and she seems to have an even more mysterious mission. (And even though she’s clearly evil, she’s also the only other interesting character, which is probably why the writers killed her too.) And then there’s a reference to her even more mysterious “masters” who have a mission so mysterious that…well, it’s a mystery wrapped in an enigma stuffed into a vague promise that it will all make sense someday. Which brings me to my next bullet point…
  • There was no Cylon plan. Ronald Moore is one of the chief creators of this show. At the beginning of his Battlestar Galactica reboot series, every episode started with an intro sequence that explained the premise: “The Cylons were created by man. They rebelled. They evolved. They look and feel human. Some are programmed to think they are human. There are many copies. And they have a plan.” Do any of you fans remember what that plan was? Anyone? No. Of course not. Because there was no Cylon plan. The writers were a bunch of lying liars who had no idea what the Cylons were up to, so they just made stuff up as they went along and never pulled it into a complete story. It’s probably wishful thinking to assume we’ll get anything better from Helix.
  • Doctor Alan Farragut is on the CDC team because his brother Peter works in the Arctic Biosystems complex and is one of the infected patients. He’s also brought along his colleague Dr. Julia Walker (Kyra Zagorsky) who happens to be his ex-wife, who once had an affair with Peter. And to square the triangle, Farragut is assisted by young Doctor Sarah Jordan (Jordan Hayes), who is secretly in love with him. I can only assume the show’s writers added a relationship drama because they thought that deadly viruses, maniacal zombies, corporate psychopaths, military conspiracies, and Arctic adventure might not provide enough story to hold our attention.

Oh well. Maybe episode #9 will be better…

Paying For Prosecutions in Virginia?

Over at Crimlaw, Virginia prosecutor Ken Lammers writes about the state’s law allowing private prosecutions. It’s a fascinating concept, and Ken goes into a bit of detail, but it comes down to this:

So, basically, if doubly approved by the judge and the public prosecutor, the hired gun prosecutor can take part in the case as long as he is under the control of the Commonwealth Attorney and has no civil case conflict. In particular, I think the civil case conflict rule is important, although it doesn’t entirely eliminate the private prosecutor’s monetary inducement to seek a conviction. After all, the party paying for the private prosecutor is paying him to be biased. However, the opinions seem to say that this was okay in Jolly Olde England, so it’s okay in Virginia until the General Assembly says it ain’t.

With those restrictions, it sounds to me as if this isn’t really about private prosecution anymore. If the Commonwealth Attorney has control over who the prosecutor is and retains control over the case, then it’s not so much a private prosecution as a privately-funded prosecution.

So, for example, if the Commonwealth Attorney’s office decides not to pursue a charge because they believe it is unfounded — no crime was committed, or the suspect isn’t really the doer — then they can prevent a private prosecutor from entering into the fray.

On the other hand, even if the Commonwealth Attorney believes the charge has a basis in reality, the office might decide to plea it down, dismiss it, or never file charges at all because they have a limited budget for prosecutions, which they prefer to use for more serious or more winnable cases. If the victim is upset about that, the Commonwealth Attorney could tell the victim that if he’ll spring for the lawyer’s fees, they’ll let him bring in an outside lawyer to pursue the case. I’m sure they could even recommend former prosecutors who they would approve for the job, which would serve the dual purpose of ensuring competent prosecution and enriching friends.

Taken to the logical extremes, a Commonwealth Attorney’s office that is truly interested in making the most efficient use of the budget for public prosecutions could end up working a lot like the Public Defender’s office: Let the wealthy victims hire their own lawyers because they can afford it, while the Commonwealth Attorney’s office does all the prosecutions for the poor victims who would otherwise be unable to seek justice.

Although I’m not sure that would be, um, politically feasible…

Liberty Is Not Suicide

Over at Defending Dandelions, “nidefatt” isn’t happy with libertarians like myself and Scott Greenfield. (I don’t think Scott’s ever identified himself as a libertarian, but he sometimes sounds like one.) In an earlier post, he commented on Scott’s constitution-is-not-a-suicide-pact post, and more recently he responded to my own response to Scott’s post:

[...] The ideas are similar.  Windy is no Greenfield, and steps back from his rhetoric and invective.  But like Greenfield, he is of the opinion that the Constitution and the Bill of Rights mean what he thinks they mean.  Civil Rights are right there, in black and white, and are meant to be applied as he has come to understand them.

Well, I certainly want the Constitution and the Bill of Rights to mean what they seem to mean to me. I place a pretty high value on individual liberty, and the Bill of Rights is written in a strong declarative tone. I like the sound of it. And I’d like to have very strong versions of all those rights it talks about.

Nevertheless, I normally try to avoid anything resembling Constitutional interpretation in my blog posts because I realize there’s an awful lot of history bound up in the interpretation of that document, and I’m far from a Constitutional scholar. In this case, however, it was hard not to mention the Constitution since I wanted to discuss why I thought the argument behind “the Constitution is not a suicide pact” is wrong.

The Constitution is a remarkable document, and like other remarkable documents, it apparently supports everyone.  What Greenfield and Windy see as being the intention of the “founders” or perhaps, if they’re thinking more accurately, the populations of the colonies/states that ratified the document, is but one view. Their view of the Constitution is one of the more attractive because it requires little thought, there simply are forbidden things and that is that.  The government can go this far and no further.  Keeping the government on its side of the line is one of our eternal duties.

It’s worse than he thinks. The hard-core libertarian view is not merely that the government is forbidden from doing certain things, but rather that the government has no lawful authority to do anything that it is not explicitly authorized to do by the constitution.

For example, some would-be censors have argued that the founders could not have envisioned such a powerful propaganda tool as television when they wrote the Bill of Rights, and surely if they had known about television, they would not given it the broad protection that the printing press receives in the First Amendment.

The libertarian response is that the Constitution describes a limited government, and since the authors could not have envisioned television, they could not possibly have intended to give the federal government power over television. Many libertarians would like to see the federal government limited only to a very narrowly defined set of enumerated powers.

I grow tired of this view.  I see it everywhere, and it is as intellectually dishonest as it is hypocritical. Of course the Constitution isn’t eternal.

[...]

What Greenfield and Windy and their ilk trumpet so blindly as the meaning of the First Amendment was a concept shaped largely by men in the beginning of the twentieth century, men like Holmes and Hand and other men who had more sense than just about anyone alive today as far as I can tell.

We are sovereign.  Not the Constitution.  We are.  The Constitution has been and will always be the plaything of the powerful.  If the best argument you can come up with is “well the Constitution said so” or “the founders thought so” then you will lose the war of ideas.

“The Constitution said so” is hardly my best argument.

More ironically, you will have attempted to thwart authoritarians by relying on authority, pure and simple.  If your ideals have as much value as you credit them with having, then take the time to learn about that value and how to express it. Otherwise, your simple, mindless repetition of this that or the other amendment and your waving of the shriveled ancient parchment you so love will not save you from the horde of children growing up today who think that document foolish and dated.

It has not escaped my attention that the Constitution is not a libertarian document. (Tolerance for slavery was the first clue.) Although it was influenced by some libertarian ideas, it does not purport to create a libertarian government that maximizes individual liberty. And if it were up to me, I would forbid the government from doing many things, regardless of whether or not the Constitution would permit them. My view of what the government should or should not be doing does not depend on the Constitution or its interpretation by any court.

But where the language of the Constitution does comport with my own preferences for government, I have a tendency to invoke it for support. Consequently, the fact that “nidefatt” thinks I was making a largely Constitutional argument is probably due to a lack of clear writing on my part.

To my mind, the main thrust of my post was to undermine Justice Jackson’s argument that sometimes liberty must be sacrificed to preserve order:

The Constitution is not a suicide pact because respecting individual civil liberties is not a suicidal act. How many countries have died because they allowed their citizens to have too much due process? How many nations have fallen because they allowed their citizens to speak up too much?

Granted, there are governments that arguably fell because of a failure to crack down hard enough on their people. Off the top of my head, there’s tsarist Russia, communist Czechoslovakia, apartheid South Africa, and the Arab Spring nations — Tunisia, Egypt, Libya, and Yemen. Corrupt authoritarian regimes, every one. In some cases, the new governments that arose afterwards weren’t any better, but the destruction of the old governments was no great loss.

Shortly after 9/11, Attorney General John Ashcroft lashed out at people who objected to the Patriot Act and other expansions of the security state by accusing them of alarming people with “phantoms of lost liberty.” To my mind, Justice Jackson was alarming people with phantoms of anarchy and chaos. Free speech has never destroyed a country worth saving.

More to the point (although one I did not make explicitly) Jackson was on the losing side of the decision. The Supreme Court had rejected his views, and in the ensuing decades the United States adopted exactly the kind of broad interpretation of free speech that Jackson was worried about. And yet rabble rousers did not stir the populace to revolution or civil war. Jackson’s moral panic over agitators was proven wrong by history.

The worst it ever got was about a decade later, when African-American civil rights leaders (among others) stirred up protests that occasionally erupted into violence — often as much by the police as by the protestors — and even then American civilization was never in danger. And note how the civil rights movement ended: The rest of America realized that the civil rights leaders — the people making exactly the kind of disruptive speeches Jackson wanted to silence — had been right all along, and many of their ideas became the dominant ethos of our society.

And sixty-some years after Jackson’s dissent, we are the most powerful and influential nation in the world. There are many reasons for that, but I argued that our embrace of liberty, though tenuous at times, was no small part of the cause:

Not only is respecting individual civil liberties not a suicidal act, it’s arguably a source of considerable strength. A tradition of freedom makes a nation difficult to conquer, the economic benefits of free markets make strong defense affordable, and the practice of open debate makes a nation flexible to advantageous changes of policy.

That’s a big part of my argument right there. Freedom on the broadest possible terms is a good policy that makes our nation strong and improves all our lives.

But freedom is also valuable in itself. From time to time, I call myself a libertarian, and I mean it in the sense that Nick Gillespie and Matt Welch define it in Declaration of Independents:

At it’s root, libertarianism is about a default preference for the freedom to peaceably pursue happiness as we define it without interference from government. It’s the belief that the burden of proof should rest not on the individual who wants to sell lemonade, paint his or her house purple, hop on an airplane, ingest intoxicants, or marry someone from the same sex (though preferably not in that order) but on any government seeking to thwart or control such victimless activities. Like the magazine we write for, we agitate for the aspirational goal of “free minds and free markets,” celebrating a world of expanding choice — in lifestyles, identities, goods, work arrangements, and more — and exploring the institutions, policies, and attitudes necessary for maximizing their proliferation. We are happy warriors against busybodies, elites, and gatekeepers who insist on dictating how other people should live their lives. Like John Stuart Mill, we’re big on “experiments in living.” Within the broadest possible parameters, we believe that you should be able to think what you want, live where you want, trade for what you want, eat what you want, smoke what you want, and wed whom you want. You should also be willing to shoulder the responsibilities entailed by your actions. Those general guidelines don’t explain everything, and they certainly don’t mean that there aren’t hard choices to make, but as basic principles, they go a hell of a long way to creating a world that is tolerant, free, prosperous, vibrant, and interesting.

That’s what I want more than anything, for all of us to live in that kind of world, and I hope it’s what you want too. Creating that world is mostly up to us, but in order to succeed, we have to have a government that is compatible with that vision. At the risk of quoting from another “shriveled ancient parchment” I think Jefferson nails it pretty well in the original Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…

In other words, freedom is not suicidal to a nation. Freedom is the whole point of having nations. The only reason for permitting governments of any kind is to help us create a world that is “tolerant, free, prosperous, vibrant, and interesting.”

Law Enforcement

Now here’s a Facebook meme that makes sense. It’s from Filming Cops, but the true adversary here is not the police officer:

This isn’t some paranoid, whack-job, cop hating-nonsense. It’s an accurate description of how all criminal laws are enforced.

Even a minor violation such as loitering can have a penalty of several hundred dollars, which is probably an awful lot of money if you’re the kind of person — poor, minority, homeless — who is likely to get hit with a loitering charge. And if you don’t (or can’t) pay the fine, sooner or later someone will get a judge to issue a warrant for your arrest, meaning that men with guns will come to take you away and lock you in a cage. If you’re accused of a more serious crime, they’ll just skip straight to issuing an arrest warrant, and men with guns will come to take you away and lock you in a cage. And in either case, if you resist being taken away and locked in a cage — a perfectly natural (albeit unwise) impulse — the men with guns will overcome your resistance with violence, up to and including killing you.

And all of this can happen before you are ever convicted of any crime.

So for God’s sake, people, think before you legislate! (Or encourage others to do so.) Because whether your law is about selling spray paint to someone younger than 18, buying too much cold medicine, selling raw milk, watering your lawn, or loitering, when you support a new law, you are implicitly saying that you think people who disobey your law should be subject to the violence of arrest and incarceration.

So before you demand a new law, ask yourself: Is what’s bothering you really worth all this trouble?

The Constitution Is Not a Suicide Pact

“The Constitution is not a suicide pact.”

The first time I heard that phrase, I thought it was a pretty good line, and I agreed with it. In a sense, I still do. That’s because the first time I heard it I interpreted it backwards from how most people do when they invoke it. I never knew why the other interpretation was the one that caught on.

I stumbled on the answer the other day when Scott Greenfield quoted from Justice Robert Jackson’s 1949 dissent from Terminiello v. Chicago, in which the Court overturned a conviction for an apparently somewhat hateful speech that violated Chicago’s breach of peace ordinance because it stirred up anger between those who heard it and those who were protesting it. Two other Justices wrote dissents (i.e. supported the conviction) on somewhat technical grounds, but Jackson argued that the Court should have upheld the conviction because it was critical to preserving the public order:

…underneath a little issue of Terminiello and his hundred-dollar fine lurk some of the most far-reaching constitutional questions that can confront a people who value both liberty and order. This Court seems to regard these as enemies of each other and to be of the view that we must forego order to achieve liberty. So it fixes its eyes on a conception of freedom of speech so rigid as to tolerate no concession to society’s need for public order.

He then goes on to describe the public response to the speech and quote from it extensively. Honestly, I skimmed over the speech (apparently something about commie Jews), but it sounds like Terminiello was something of a fascist. The protestors outside the auditorium supposedly were communists, which created the potential for some rioting. All of which apparently gave Justice Jackson visions of World War II breaking out all over again, right there on the shores of Lake Michigan:

This was not an isolated, spontaneous and unintended collision of political, racial or ideological adversaries. It was a local manifestation of a world-wide and standing conflict between two organized groups of revolutionary fanatics, each of which has imported to this country the strong-arm technique developed in the struggle by which their kind has devastated Europe.

Jackson’s dissent goes on and on — including quoted material, it runs to almost 8000 words — ending with this:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Greenfield explains what that has come to mean:

That the Constitution is not a suicide pact flows from this, and at any given moment in history, the outcome of a decision may seem to be compelled by “a little practical wisdom,” meaning that we first must protect ourselves from who or what seems most threatening.

To me, Justice Jackson’s position is somewhat daft. What’s the point of preparing a written Bill of Rights and having it ratified by the States if you allow the courts to ignore it whenever obeying seems like hard work?

What Jackson proposes is like calling your homeowner’s insurance company while staring at the smoking ruins of your house only to have the claims agent respond, “The whole thing burned down? Oh wow…  No, buying you a whole new house would be way too expensive… I’m sure you understand that we didn’t anticipate anything that bad happening to your house when we sold you the policy…”

Just as we only need homeowner’s insurance when something really bad happens to our home, we only need our legal rights when the government thinks we’re doing something bad. There’s no point to a Bill of Rights that only protects us when the government doesn’t mind what we’re doing. We don’t need protection when no one’s out to get us. We need protection when the powers-that-be think we’re the enemy.

But people with views like Jackson (or Posner) argue that those are the very times when the Courts should be less rigid about protecting people’s rights. They speak of times of “unprecedented perils” and “existential threats” to our country. (The sources of the threats change over time — communist spies, civil rights agitators, militias, drug dealers, Satanists, human traffickers, terrorists — but the solution is always drearily authoritarian.) To ignore the danger because we are too worried about phantoms of lost liberty would be tantamount to suicide, and our commitment to Constitutional rights is not so great as to require we follow it to our deaths. The Constitution is not a suicide pact.

When I first head that phrase, however, I understood it to mean something different: The Constitution is not a suicide pact because respecting individual civil liberties is not a suicidal act. How many countries have died because they allowed their citizens to have too much due process? How many nations have fallen because they allowed their citizens to speak up too much?

Granted, there are governments that arguably fell because of a failure to crack down hard enough on their people. Off the top of my head, there’s tsarist Russia, communist Czechoslovakia, apartheid South Africa, and the Arab Spring nations — Tunisia, Egypt, Libya, and Yemen. Corrupt authoritarian regimes, every one. In some cases, the new governments that arose afterwards weren’t any better, but the destruction of the old governments was no great loss.

And of course there’s colonial America, creators of that Constitution we were just talking about. The new United States had just fought a war for independence against one of the most powerful enemies we’ve ever faced (only the nuclear-armed Soviet Union would be proportionately more powerful), and it was in the aftermath of that war that the Bill of Rights was created, setting forth our rights in some rather absolutist language. Clearly the authors did not think due process and freedom of speech were a recipe for national destruction.

Not only is respecting individual civil liberties not a suicidal act, it’s arguably a source of considerable strength. A tradition of freedom makes a nation difficult to conquer, the economic benefits of free markets make strong defense affordable, and the practice of open debate makes a nation flexible to advantageous changes of policy.

I suppose folks like Jackson are right in a sense: We still do have to find a balance between liberty and order. But I would argue that we did find that balance, and we wrote it down in the Constitution. It’s not a suicide pact, but it is a pact: If some people think it’s time to change that pact, let them make their argument for changing it and follow the process for amending it. Otherwise, keep the order you think is so important by following the rules.

An Unfortunate Message For Police

Radley Balko reports with some astonishment that a grand jury in Burleson County, Texas has refused to indict a man who shot and killed a police officer who was conducting a SWAT-style raid on his home:

Last December 19th, nine of the 10 members of the Burleson County Sheriff’s Department staged a raid on the rural home of Henry Magee. [...]

By the time the raid was over, Deputy Adam Sowder was dead. Magee shot him as Sowder and his fellow deputies attempted to force their way into Magee’s home.  Magee was arrested and charged with capital murder — the knowing and intentional killing of a police officer.

[...]

Earlier this month, District Attorney Julie Renken presented the case against Magee to a grand jury. “I made a very thorough presentation on Texas law on cap murder and Texas self defense law,” Renken told me in a phone interview. “There were over three hours of testimony. I did not make a recommendation either way. I just wanted to present the law and evidence very fairly.”

Remarkably, this week the grand jury returned a “no-bill” on the murder charge. That is, they found that Henry Magee had acted in self-defense.

As Radley notes, this is a remarkable ruling:

“I don’t know of any other case where someone shot and killed a police officer in the course of a drug raid has been no-billed by a grand jury,” [Magee's defense lawyer Dick] DeGuerrin says. “At least in Texas.” Over the course of about eight years of covering these raids, I don’t know of one outside of Texas either.

Scott Greenfield notes how remarkable it is, but he’s worried that the wrong people will get the wrong message:

Yet, this scares me to the core.  How many fans of the John Bad Elk decision, incapable of grasping that it is not good law, have been chomping at the bit for a “no bill” like this?  There will be armed men and women in tin foil hats with their fingers tightly grasping their weapons praying for someone to walk through that front door so they can put them down.

To the nutjobs, this story proves what they have been thinking, saying, all along.  This proves they have the right to kill cops. This proves they can defend their home from the thugs with shields. This proves it.

I agree. We surely don’t want crackpots getting the message that it’s now okay to kill cops.

But…I wouldn’t mind if some cops got that message. That is to say, I think it would be a good thing if more cops realized that it is possible to cross the line — that in the course of their job, there are acts they could engage in that are so hazardous to citizens, and so lacking in justification, that a grand jury would conclude that they were no longer entitled to the protection of the law, because they were no longer the good guys.

I just want to send that message without any more people getting killed.

I Have Got to Start Writing Shorter Posts

It just feels like way too many of my posts are really long, including several that are in the pipeline. I have got to start writing more short posts. That is all.

Sources and Credit

Scott Greenfield is a little peeved that reporters don’t give credit when they pick up stories from bloggers:

For many years, mainstream media got a lot of juice as a result of links from the web, from blogs.  We would see a story and pick it up, run with it, comment on it, and people would find it sufficiently fascinating to go read the source article in a paper they would never otherwise know about. Do you read the Times? Or the Gate? Or the Christian Science Monitor, or USA Today, or tiny local papers no one outside of bumfuck has ever heard of?  Not unless there is a reason to do so.

Yet, when a blawg picked up on a story or opinion that subsequently caught the interest of a newspaper reporter, they were happy to run with it, but there was almost never a mention of the fact that it came via a blog.  Reporters saw no need to credit blogs, as they were, well, blogs. Beneath their dignity and inconsequential, tapping away with crazy eyes in bathrobes in the middle of the night.

Scott is right about reporters not giving credit to bloggers, but I think he’s wrong about why. Well, some reporters sneer at bloggers, but I think there’s also a bit of a culture clash between the conventions of journalism and blogging.

The reason traditional journalists cite sources in stories is not to give credit, but rather to describe the origin of statements of facts within the story, thereby giving some indication of their credibility. A story which says that “Governor Smith took bribes from the construction industry, according to an anonymous source” is not as credible as a story that says “Governor Smith took bribes from the construction industry, according to a statement issued Wednesday morning by former comptroller Melvin P. Jones.”

This is basically the journalist’s version of footnotes. In an academic paper, the same statement would probably look something like this:

Governor Smith took bribes from the construction industry.1

1Melvin P. Jones, former comptroller, statement on January 29, 2014.

With this cite to a source, readers and other journalists can judge the story’s veracity or even try to contact Melvin P. Jones directly to verify the facts or get additional information.

But regardless of how you write it, as a journalist or as an academic, it doesn’t really do the reader much good to know how the author discovered this fact. “Governor Smith took bribes from the construction industry, according to former comptroller Melvin P. Jones, who this reporter contacted on a tip from accountant Mike Devlin, who he heard about from receptionist Debra Stevens, who he first met while doing another story four years ago.”

Unless they’re interested in the actual reporting process, readers don’t need to know about any of the people the reporter talked to along the way to Melvin P. Jones. They’re not sources, they’re just people with tips and ideas about stories, and journalists usually don’t mention them. (In fact, many of them prefer it that way, so they can keep their jobs.)

Similarly, a journalist who writes something like “Governor Smith took bribes from the construction industry, according to former comptroller Melvin P. Jones, in a story first brought to our attention by Scott Greenfield,” isn’t really adding anything that has an impact on the credibility of the facts being reported. Neither is it worthwhile to mention that other media outlets are reporting the story, for the same reason. And it certainly adds little of value to the reader to know from which particular media outlet or blog the reporter got the idea.

One time when media outlets do credit each other is when they don’t have their own sources. So if the Times is reporting the Governor Smith bribery story, and the Post doesn’t have their own source in the Governor’s office, then the Post‘s only choices are to either not run a story about the Governor’s bribe-taking at all, or run the story and credit the only information source they have: “Governor Smith took bribes from the construction industry, according to former comptroller Melvin P. Jones, as reported in the Times.” This lets readers know that the facts come second-hand by way of the Times, which may or may not make the story less credible for them. Think of it as the journalist’s equivalent to the academic rule discouraging citing secondary sources in footnotes: Use them only when you don’t have a primary source.

This is one of the reasons journalists get so excited about exclusive stories: If any other media outlet wants to talk about your story, they have to credit you. It’s also why it sucks to play catch-up on a story: You have to keep crediting the competition. You can bet that the Post will try to get their own reporter to talk to Melvin P. Jones before the next edition, so that they can end the humiliation of crediting the Times in every single version of the story.

Bloggers think about this completely differently. For one thing, unlike the news media (or academics writing footnotes), we are far more willing to cite secondary sources. In part, that’s because we don’t generally do much reporting. Most traditional bloggers don’t interview people or gather facts, and this puts us in the same position as the Post above: We have to link to other web pages to cite sources for our material.

Bloggers can also be freer in their use of secondary sources because our form of journalism developed in the age of hypermedia. So if I want to write about the recent accusations against Woody Allen by his daughter, I can link to Gideon’s analysis of whether he can be prosecuted or Jack Marshall’s brutal takedown of one of Allen’s defenders and trust that my readers will be able to follow the links to the primary source if they want to. In this way, linking to secondary sources actually provides more information than just linking to the primary source because it also provides links to other people who have interesting things to say.

Since we do this all the time, as an intentional part of blogging, we don’t think of it as a bad thing, the way traditional journalists do. Mentioning other websites and including quotes and links is just how blogging is done. In fact, finding other interesting websites and blog posts is recognized as a big part of the value of blogging: We go out and find interesting stuff for you to read. One of the reasons Glenn Reynolds’s Instapundit blog was so wildly influential is because he was always finding interesting new bloggers for his readers to enjoy.

Also, the early bloggers were somewhat embattled — under attack from traditional journalists and from many of the politicians, business leaders, and celebrities they wrote about — and this led to a sort of “brothers in arms” camaraderie: You suck and your ideas are stupid, and in my post explaining why you suck and why your ideas are stupid, I’m going to pay you the respect of linking to you and giving you credit for the things you wrote because we’re all bloggers and we have to support each other. After all, people who disagree with us are also great sources of material for blog posts. Even our ideological opponents help us succeed at blogging.

If reporters’ citing sources of facts are the journalistic equivalent of footnotes, then bloggers’ links to posts that inspired them are the blogospheric equivalent of a book’s Acknowledgements.

Traditional journalists just don’t think that way. They expect to have competition on stories. Even when a story starts out as an exclusive — and every other news outlet has to credit them as the source — they assume other journalists will be contacting the same sources and searching the same files as they did, and that they will eventually publish substantially similar stories without acknowledging that someone else got there first. That’s just how journalism is done.

Also, traditional journalists are taught to keep themselves out of the story. (You wouldn’t know that from TV reporters, but it’s generally still the case with print media.) That means they generally just tell the story without saying how they got it, or where they got the idea for it, or who else has been writing about it. They assume readers will not be interested in that stuff, or in the general history of how the story has been playing out in the media. After all, even book authors usually put the Acknowledments section at the end, where people don’t have to read it.

Thane Rosenbaum Wants Us to Stop Being Mean…Or Else

Thane Rosenbaum has an opinion piece at the Daily Beast arguing that we should suppress the rights of Neo-Nazis and others to spout “hate speech.” That’s a common and well-meaning proposition, however misguided, but his reasoning for why we should have these laws is dangerously overbroad.

Let me start, however, by pointing out that the Nazis themselves were no fan of free speech, which puts Thane Rosenbaum squarely in the Nazi camp himself. In fact, his post violates a new Israeli law he describes with some approval:

Meanwhile, Israel’s parliament is soon to pass a bill outlawing the word Nazi for non-educational purposes.

Maybe if he gets his new speech police, their first job will be taking a closer look at his potential pro-Nazi leanings…

Nah. Not really. I don’t actually believe for even a moment that Thane Rosenbaum harbors Neo-Nazi tendencies. I’m just trying to make the point that when you pass a law, you have to give someone the power to make the decisions about who to use it against, and you could find yourself in handcuffs if they don’t share your vision of who the bad guys are. This is a recurring problem with most laws against bad speech.

For example, if these kinds of hate speech laws had been in place in the years before World War II, when Hitler’s Germany was seen by many as a bulwark against Bolshevik Communism, you might have been investigated and prosecuted for speaking out against the Nazis. (As it was, agents of Hoover’s FBI at the time considered anti-Nazi statements to be evidence of pro-communist leanings.) So if Rosenbaum ever gets his “hate speech” laws passed, he better hope no one in charge is ever offended by anything he wrote.

Then there’s his use a certain tired legal-sounding argument:

Yet, even in the United States, free speech is not unlimited. Certain proscribed categories have always existed—libel, slander and defamation, obscenity, “fighting words,” and the “incitement of imminent lawlessness”—where the First Amendment does not protect the speaker, where the right to speak is curtailed for reasons of general welfare and public safety. There is no freedom to shout “fire” in a crowded theater.

There sure as hell is. You can (and should) shout “Fire!” if the theater is on fire. Or if it’s a theatrical theater instead of a movie theater, the performers can certainly shout “Fire!” if it’s part of the play. The original quote that Rosenbaum is referencing is from a Supreme Court decision on Schenck vs. United States written by Oliver Wendell Holmes: “The most stringent protection would not protect a man in falsely shouting fire in a theater and causing a panic.”

Note the parts about “falsely” and about “causing a panic.” The scenario Holmes describes is about making false statements of fact (not just opinion) in a situation where people would not have time to give it due consideration and debate (because the theater might be on fire) which causes actual harm (by causing a panic). This is a far cry from “hate speech” which might possibly influence someone to make the decision at some point in the future to do something wrong.

(Holmes himself did not see these distinctions, and upheld restrictions on speech in Schenck, but they were soon wiped out by later decisions, including some by Holmes himself. Ken White tells the whole story.)

As I said earlier, however, Rosenbaum’s argument really goes off the rails when he explains the reason he wants speech-restricting laws:

Yet, the confusion is that in placing limits on speech we privilege physical over emotional harm. Indeed, we have an entire legal system, and an attitude toward speech, that takes its cue from a nursery rhyme: “Stick and stones can break my bones but names can never hurt me.”

All of us know, however, and despite what we tell our children, names do, indeed, hurt. And recent studies in universities such as Purdue, UCLA, Michigan, Toronto, Arizona, Maryland, and Macquarie University in New South Wales, show, among other things, through brain scans and controlled studies with participants who were subjected to both physical and emotional pain, that emotional harm is equal in intensity to that experienced by the body, and is even more long-lasting and traumatic. Physical pain subsides; emotional pain, when recalled, is relived.

Pain has a shared circuitry in the human brain, and it makes no distinction between being hit in the face and losing face (or having a broken heart) as a result of bereavement, betrayal, social exclusion and grave insult. Emotional distress can, in fact, make the body sick. Indeed, research has shown that pain relief medication can work equally well for both physical and emotional injury.

He doesn’t link to these studies, so I don’t know how to evaluate them, but this seems plausible (especially if the pain relief medication he speaks of is an opium derivative).

We impose speed limits on driving and regulate food and drugs because we know that the costs of not doing so can lead to accidents and harm. Why should speech be exempt from public welfare concerns when its social costs can be even more injurious?

In other words, he’s advocating laws against hate speech as part of a larger policy of laws against causing emotional harm in general. This strikes me as a horribly bad idea.

For one thing, I can’t imagine how you’d establish emotional pain outside of a laboratory setting. Sticks and stones leave bruises and broken bones, which are clear and objective signs of injury. Both common sense and medical science tell us there will be pain and suffering. Calling someone bad names, though…that’s a lot harder to prove. Broken bones always hurt. Bad words are more subjective.

For example, I was in high school when serial killer John Wayne Gacy was arrested for raping and killing 33 young men and boys here in Chicago, and a kid named Harry (I think) decided to make fun of me because he thought I looked a bit like Gacy. Whenever I’d run into him or pass him in the hall, he’d call out “Gacy!” at me. (He wasn’t very inventive.) This was arguably a pretty hateful thing to do, and at the time, a friend who’d observed Harry’s harassment asked me why I let him get away with it.

I was completely surprised by his question, because until he asked, it had simply never occurred to me that I should care what Harry said. Obviously, my friend had strongly different feelings about it. And that raises the question of whether Harry’s speech comparing me to one of America’s most monstrous serial killers would be some sort of crime under the emotional harm statutes envisioned by Rosenbaum.

Since I suffered no emotional harm, then maybe not. But what if Harry had been picking on my friend instead, who clearly felt it was much more demeaning? It’s a strange and confusing way to define a crime when it depends on how the victims feel about it. It’s also rife for abuse by people who are good at faking their feelings, such as sociopaths. Pass this sort of law, and someone will figure out a way to harass people or make money by filing wholesale accusations about hurt feelings.

(Intent is important as well, and can be difficult to judge. For example, misunderstandings have arisen because foreigners visiting America don’t realize that young black boys will get offended if you address them as “boy.” And if the young black man responds with angry words, is he being insensitive to the foreigner’s culture? So which one should we arrest for causing emotional harm? The one who feels most hurt? The black guy as usual? It could go either way, and neither one is good.)

In the marketplace of ideas, there is a difference between trying to persuade and trying to injure. One can object to gays in the military without ruining the one moment a father has to bury his son; neo-Nazis can long for the Third Reich without re-traumatizing Hitler’s victims; one can oppose Affirmative Action without burning a cross on an African-American’s lawn.

That’s where Rosenbaum’s argument breaks down completely. In the paragraph above, Rosenbaum is picking sides and dismissing the feelings of people he disagrees with. He speaks of people who “object to gays in the military” as if they had some antiseptic policy concerns. But the people who object to gays in the military, or gay teachers, or gay Boy Scouts, or gay marriage, or gay anything, do so because they are genuinely upset by homosexuality.

I know of no reason to think anti-gay people are faking when they claim to be disgusted by gay sex. I’m sure they find it genuinely disturbing. I’ll bet the discomfort they experience from seeing two men kissing — or even just from knowing that people somewhere are having man-on-man oral and anal sex — would be measurable on those brain scans Rosenbaum mentioned.

To pick one example, if we’re going to make it a crime to cause emotional distress, then shouldn’t gay “kiss-ins” — gay couples visiting non-gay bars or restaurants in large groups and then all starting to make out at the same time — be a hate crime? After all, they do it with the explicit intention of freaking out anti-gay bigots.

While we’re at it, I’m pretty sure that opponents of inter-racial sex and marriage also experienced genuine emotional harm from miscegenation. Just seeing a young white women in the company of a black man must have been very upsetting to all the good white folk. You can pick almost any controversial social trend — women wearing pants, men with long hair, women drinking in bars, birth control and casual sex — and you can find some people who were very upset about it. Should they all have the power of laws against emotional harm to suppress the things that upset them?

I suppose supporters of emotional harm laws could counter that my examples are silly: That’s not the kind of emotional harm they’re talking about, and no one is going to use those laws to arrest anybody for those kinds of things. But that’s because I wanted to illustrate the absurdity of such laws, so I chose examples of social conflicts which have already been won: Blacks and whites can get married, women can get birth control, gay sex is legal.

But there was a time in this country when the majority of people (or at least the majority of people with political power) thought all of those things were wrong, and they probably would have been illegal under Thane Rosenbaum’s envisioned system for punishing people who caused emotional harm. (In fact, many of them were illegal even without his laws.)

Let me put it this way: If laws against emotional harm had existed in 1950 and police were called because two gay men were caught making out in an alley behind a bar and a group of onlookers were yelling anti-gay slurs at them…who do you think would get arrested? Or if a bunch of gay-rights advocates were protesting a group of preachers who were denouncing sodomites, who do you think would would be accused of causing emotional harm? If a black civil rights group denounced a leader of industry as a racist, and he claimed emotional harm from that, who do you think the police would be more likely to arrest?

There’s plenty of historical evidence. The black Americans who lead the civil rights movement were denounced as agitators, traitors, and communists, all because they demanded rights that are nowadays considered uncontroversial. The first women to complain about sexual harassment were denounced as man-hating troublemakers. More recently, gays who want to get married have been denounced for harming straight marriage.

Obviously, some people say hateful things because they are intentionally trying to hurt other people, but an awful lot of people say these things because they really believe them. Just because someone is an anti-gay, -black, -women, -Jew, -gay bigot doesn’t mean their feelings aren’t genuinely hurt when someone denounces them for it, often because they just can’t see what they’re doing wrong. For example, in recent years, the traditionally male-dominated subcultures of atheism and computer gaming have gone through several flare-ups in which women complained of sexism and were in turn accused of being oversensitive and mean. If those communities had adopted Rosenbaum’s rules against emotional harm, do you think they would have been used against the men accused of sexism or the women who dared to accuse them?

Actually, the United States is an outlier among democracies in granting such generous free speech guarantees. Six European countries, along with Brazil, prohibit the use of Nazi symbols and flags. Many more countries have outlawed Holocaust denial. Indeed, even encouraging racial discrimination in France is a crime. In pluralistic nations like these with clashing cultures and historical tragedies not shared by all, mutual respect and civility helps keep the peace and avoids unnecessary mental trauma.

I mean no disrespect to my lawyer readers when I say that the goals of “mutual respect and civility” will probably not be helped by making it easier for people involved in emotional disputes to file lawsuits or criminal charges.

Consider the current ongoing fight between lesbians, feminists, and trans women over competing definitions of who belongs to the right tribe. It’s ugly and it’s mean and lots of people’s feelings are hurt. As a privileged heterosexual cis male, I have only the vaguest idea what the issues are and no sense at all of the feelings in play. But if it was against the law to hurt people’s feelings, some judge — probably a hetero cis male like me — would be expected to figure it out and punish the malefactors. Does anybody really believe such a clueless intervention would make things more civil?

Free speech should not stand in the way of common decency. No right should be so freely and recklessly exercised that it becomes an impediment to civil society, making it so that others are made to feel less free, their private space and peace invaded, their sensitivities cruelly trampled upon.

Laws against causing emotional harm will only protect those who are in the majority or those minorities who are easy to sympathize with, or who have gained political power. Powerless minorities, as always, would be ignored, or would themselves be accused of causing emotional harm when they protested their treatment. Abridging free speech will cause more discord than it will prevent. Free speech is not an impediment to civil society, it is the mechanism through which civilized societies resolve their internal differences.

Scattershot 2014-02-01

Random shots around the web:

Matt Brown has a lot more background information about the cop who shot a surrendering man in the back and about the leadership in Pinal County that make it likely he’ll get away with it.

Norm DeGuerre has a very good essay describing the mismatch between how the justice system works and how real people live their lives.

Gideon notes that prosecutors aren’t always as pro-victim’s rights as they say.

The appellatesquack has a great post about fake peer-reviewed journals. His post is based on a Science magazine article that is itself a great read if you’re into that sort of thing. At times it’s pretty snarky for a science article:

After months of e-mailing the editors of SAP, I finally received a response. Someone named Charles Duke reiterated—in broken English—that SAP is an American publisher based in California. His e-mail arrived at 3 a.m., Eastern time.

I’m pretty sure everybody inside the Beltway sees themselves this way. Non-ironically.

(h/t Popehat)

 

More Photos of Beezle Growing Up

I was working on my comprehensive paragraph-by-paragraph commentary on President Obama’s State of the Union address, when suddenly it hit me: I should just post more pictures of Beezle growing up. Here he is on my home computer desk:

Beezle finds a spot on my desk

This used to be one of his favorite spots:

Beezle sleeping in the sink

I never had a desk cat before, but now I’m getting used to it. Here he is, hanging out with me on my work desk:

Beezle sleeping on my desk

Just a couple more pictures of the fluff:

Beezle sleeping on his pillow
Beezle

A Modest Solution for Handling Multi-Format Legal Briefs

After reading Daniel Sockwell’s article about writing legal briefs that you expect a judge to read on an iPad, Scott Greenfield is a little bummed out over the suggestion to eliminate footnotes:

Initially, Sockwell’s point about eliminating footnotes is a critical one, not just because they’re hard to read on a tablet but because that means footnotes won’t be there to be used. I love footnotes in briefs.  They are the perfect tool to make mini-arguments, small off-shoots of main points that may not merit a point heading of their own but carry weight in the consideration of the main point.

Scott also brings up an important practical point:

There is one problem arising from the mixed brief submission, where a court requires paper briefs as well as digital briefs.  The two can’t be different, and yet the two will be read in very different ways that require them to be different. Sockwell makes the point that an advocate needs to know how a particular judge reads a brief, and tailor a brief to her ways.  That may be fine when the brief goes to a trial judge, but won’t necessarily help when it goes to an appellate panel. You can’t please them all.

I have good news for Scott: Technology has the solution!

If courts insist on only one version of the document, but you want it readable in two different formats, the solution is an intermediate electronic markup language which specifies content rather than format. You’ll submit this intermediate document to the court clerk, who will use it to prepare the judge’s reading copy in whatever form the judge prefers. For example, Scott could create his mini-argument with the appropriate markup, submit his brief to the clerk, and the clerk’s computer could render his mini-argument as a footnote on the printed copy and on the iPad perhaps it could generate a nice fly-out sidebar with an elegant easing algorithm.

How do we know that a content-oriented intermediate markup language is the best solution? Simple. We know it will work because software engineers have already implemented dozens, if not hundreds, of content-oriented intermediate markup languages, such as RUNOFF, troff, Tex, SGML, HTML, BBcode, Markdown, MediaWiki, PmWiki, AsciiDoc, Mobipocket, EPUB, OpenXPS, and PDF. With so many successes already, how can one more possibly fail?

I suspect that tech-savy clerks at several of the more innovative courts will lead the way by specifying their own preferred content-oriented intermediate markup languages, probably using a variant of an existing one with a few court-specific extensions. Once that happens, NIST should react with their customary efficiency and issue a strawman process proposal for establishing a steering committee to develop a national standard for a legal brief submission markup language.

In less than half a decade this should result in an initial draft proposal, after which court systems will begin the process of retiring their prior legacy brief submission formats, except of course for those court systems that want to wait for the version 2.0 draft to stabilize because it adds some exciting new features that didn’t make it into the 1.0 version, and because it will clear up some ambiguities and completely replace the system for handling string citations with one that’s more comprehensive.

Don’t worry if all this sounds confusing, because legal software vendors will be happy to provide a markup translation solutions that will convert between many of the most widely-adopted brief-submission content-oriented intermediate markup languages. Most lawyers shouldn’t need to purchase more than two or three different programs to cover all the jurisdictions they practice in, although many larger firms are expected to prefer cloud-based subscription solutions.

Welcome to the digital revolution! The future is going to be awesome!