Terrorism In America

Say, did you hear about the new Islamic terrorist cell? So far, they’ve killed a Christian pastor and they’ve set a baby on fire. And they’re operating right here in the United States!

Actually, I lied. It wasn’t an Islamic terror cell, it was something called the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team, which is led by Sheriff Joey Terrell from Habersham County, Georgia. They killed Pastor Jonathan Ayers back in 2009 because they thought he was involved in drugs, and they decided to violently confront him before they bothered to confirm the facts. Their more recent victim, the baby, was burned just a few days ago:

A 19-month-old boy critically injured when a police device was tossed into his bed has a 50 percent chance of surviving, his parents said today. But a northeast Georgia sheriff defends the officers’ actions, calling it a tragic accident.

Sheriff Terrell refuses to admit there’s a problem:

“The last thing you want is law enforcement to injure someone innocent,” Habersham County Sheriff Joey Terrell told The Atlanta Journal-Constitution. “There was no malicious act performed. It was a terrible accident that was never supposed to happen.”

Well what the fuck do you think is going to happen if you throw a flash-bang grenade through a doorway when you can’t see where it’s going to land? Those things may not be as deadly as fragmentation grenades, but they still explode with enough heat to start a fire. Plenty of people have been injured by flash-bang grenades.

Terrell further explains:

“Our team captain asked the normal questions – is there children?” Terrell said. “If there’s children involved in a house, we do not use any kind of distraction devices in those houses. We just don’t take the chance on it.”

But there were no indications of children in the home.

“According to the confidential informant, there were no children,” Terrell said. “When they made the buy, they didn’t see any children or any evidence of children there, so we proceeded with our standard operation.”

Even when they don’t directly injure people, flash-bang grenades still stun and disorient people, which means they are an indiscriminate assault against anybody in the room, including people who present no threat to the entry team. In many cases, the raid teams are serving search warrants, which means there may not even be proof yet that anyone in the house committed a crime. So I’m not particularly impressed by their concern for children, since they seem to have no qualms about harming innocent adults.

While Terrell said the sheriff’s office takes ownership of its decision to enter the home, that was necessitated by the man who was selling drugs there.

No. No it wasn’t. Nobody forced the task force to try to arrest that guy, in that place, on that day.

“The person I blame in this whole thing is the person selling the drugs,” Terrell said. “Wanis Thonetheva, that’s the person I blame in all this. They are no better than a domestic terrorist, because they don’t care about families – they didn’t care about the family, the children living in that household – to be selling dope out of it, to be selling methamphetamine out of it. All they care about is making money.

“Look what they made me do.” It’s the argument of the psychopath. Every schoolyard bully uses it. Every wife beater. Every guy who knifes someone over an argument in a bar. Every cop who butts in where he doesn’t belong and hurts someone.

“They don’t care about what it does to families,” Terrell said. “It’s domestic terrorism and I think we should treat them as such. I don’t know where we can go with that, but that’s my feelings on it. It just makes me so angry! I get so mad that they don’t care about what they do, they don’t care about the families or the people they’re selling to.”

As Jacob Sullum points out, it wasn’t a drug dealer who put a baby in the hospital with critical burns. That was Sheriff Terrell and his drug warrior task force. So ask yourself, who are the real terrorists here?

About a decade ago, when the U.S. military began fighting in Afghanistan, we started hearing stories of the violence the Taliban would commit in the name of their religious beliefs. I remember in particular that they were attacking men for shaving their beards (it’s still going on in the region). It’s one thing to have sincere religious beliefs, but it takes a special kind of derangement to want to use violence to force others to conform to them.

We’re seeing another example with the Boko Haram terrorists in Nigeria who have kidnapped hundreds of schoolgirls because its members have religious objections to the education of females, and they think they have the right to violently prevent other people from doing things that conflict with their beliefs.

Given that drug use is a consensual act and that the drug laws are more than a little arbitrary in what they allow or prohibit, Sheriff Terrell’s task force is violently enforcing conformity with what are essentially religious beliefs about the evils of drugs. They are the American version of Boko Haram and the Taliban.

(Hat tip: Radley Balko.)

Good Faith, Bad Policy

An interesting discussion broke out in the blogosphere last week. It all started with Andrew Cohen in The Week, complaining about the legal fiction of “good faith.”

When I was a young man learning the law, I was taught about the “good faith” in which all public officials are always and forevermore presumed to be acting. This presumption, this so-called “implicit covenant,” is an axiomatic cornerstone of both civil and criminal law. And why not? Our courts are busy enough these days without requiring judges to peer into the motives and the biases of the parties moving through our justice systems.

What a tidy but self-defeating fiction the “good faith” presumption has revealed itself to be over my 25 years in the law. The more I study criminal justice, the clearer it is to me that public officials on every level of our justice system are wholly unworthy of the benefit of the doubt the law ascribes to their actions.

I first read those words over at a public defender where Gideon was a little surprised, not by the revelation, but by how long it took:

For Cohen, who’s been a lawyer for a long time and a distinguished legal writer, to come to this realization 25 years into his career is quite telling.

It reveals that we are all operating from the same basic assumption that the system, in the end, works: that everyone in it is doing the best they can do and that any injustices are the outliers. “The best system in the world” is the norm and the wrongful convictions and the prosecutorial misconduct are the inevitable bugs in a system manned by humans.

But if you’ve been reading this blog, or others, or have had any involvement with the system, you know that the assumption is false: it’s a fiction created to grant a sense of stability to the system.

Scott Greenfield has a problem with Andrew Cohen’s piece, and with some of the reaction to it, because apparently the presumption of good faith has a technical meaning in the arena of law. Scott’s not writing Intro to Law, so his explanation of what good faith means is a little vague, but I gather that the presumption of good faith specifies a default assumption that is supposed to be used when resolving legal disputes.

But that’s not a reason to question the good faith presumption.  Missing is an understanding of what it is and why it exists.  The law is replete with presumptions, the one most honored here being the presumption of innocence.  It means that a person is innocent until proven guilty. It reflects a fundamental policy choice, does a criminal defendant start from a position of innocence or guilt?  It proceeds to establish a baseline, where the burden of rebutting the presumption falls on the party that disagrees with it.  So the prosecution has the burden of proving guilt rather than the defendant having the burden of proving innocence.

[...]

But it’s just a starting point. Without starting points, the law would require litigants to reinvent the wheel from scratch every time.

The beauty of such presumptions is that they are rebuttable.  The law may presume a public official to act in good faith, but that merely informs the parties of who has the burden to dispute the presumption and the burden of proof.

In other words, if I have this right, in the absence of evidence to the contrary, a judge is supposed to assume that public officials are acting in good faith, much as he is supposed to assume that a criminal defendant is innocent. He can’t just make up crazy ideas about why the public official is a scumbag any more than he can make up crazy ideas about why the defendant is guilty. I’ve never really thought about that before, but it seems to make sense. The basic idea seems to be that judges shouldn’t make stuff up without evidence. Hard to argue with that.

The real problem, according to Scott, is that judges aren’t taking seriously the possibility that the presumption of good faith can be rebutted.

This is the core distinction that is confused by the challenge to the presumption of good faith.  The problem is not that we begin with the presumption, but that our system suffers from inherent prejudice that prevents public officials, particularly judges, from correcting the bad faith of other public officials.

The fault Cohen complains of is undoubtedly real, but the cause isn’t the presumption of good faith.  The cause is the refusal of establishment stakeholders to care enough about the integrity of the system and their own self-respect to make hard decisions, to condemn wrongs of their fellow establishment stakeholders and to use their power to correct the faults.

I don’t know enough about the law to judge whether Scott is right about this, but it certainly makes sense.

However…

Not being a lawyer, and therefore not being aware of the legal presumption of good faith, I was thinking of something else when I read Gideon’s post and Cohen’s column. Law is not the only discipline in which it makes sense to talk about a “presumption of good faith.” The question of whether public officials are acting in good faith is an important issue in analyzing public policy and the nature of government.

I’m pretty sure that Radley Balko, who is also not a lawyer, was thinking along the same lines:

We tend to assume that public employees always act in the public interest — or at least we write our laws and structure our government in a way that assumes it. But there’s nothing transformational about a government paycheck that turns the name on the “payable to:” line into an altruist. This isn’t to say that government employees are especially evil or awful or terrible, only that they’re just as human and fallible as anyone else.

Back when I was a teenager around the end of the 1970′s, I was only just becoming concerned about nature of government, but one of the things that bothered me was the problem of bad cops. It seemed to me that whenever some community activist would complain about police brutality, defenders of the police would argue that the police were there to protect us from criminals and that they deserved our respect. It seemed to me, however, that they were ignoring an important problem: Sure, most cops protected us, but given the amount of trust and power we invest in police officers, that rare bad cop could do an awful lot of harm.

As it turns out, the problem was somewhat worse than I imagined.

When economists study the market, they make some rather cynical assumptions about how people behave. In particular, it is axiomatic in economic thinking to assume that people are selfish, in the sense that, given a choice, they will always choose whatever advances their own selfish interests.

This assumption has proven useful in thinking about the behavior of the free market: Consumers want good deals, employers want hard work at a low wage, employees want light work at high wages, and investors want to make as large a profit as they can. Surprisingly, economic theory tells us that even with all this selfishness, the incentives within an ideal free market will encourage people to produce the goods and services that will most improve the lives of consumers. As Adam Smith wrote, “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.”

You may notice that I referred to an ideal free market. The reasoning leading to the conclusion that markets optimize production and consumption only works if markets meet certain ideal criteria. (The the economics equivalent of the physics assumption that everything is spherical and frictionless.) Real markets are not ideal markets, of course, and there are complications — transaction costs, information asymmetry, monopoly power, externalities — all of which economists refer to as market failures. And in most cases of market failures, economists (and everyone else) used to assume that the government should step in to correct the problem. Exactly how the government would fix things was not explored.

In the latter half of the last century, however, economists began examining the behavior of government using the same analytical tools that they used for the market. In particular, they assumed that the people making up the government were no less selfish than the people who made up the free market. So instead of assuming that the government would just fix problems, they assumed that everyone involved — voters, elected officials, bureaucrats, and special interests — would selfishly look out for themselves. This was called public choice theory.

People seem to have a hard time thinking this way. Even after years of skepticism about the wonders of government, I still catch myself trusting it too much.

Take net neutrality, the concept that internet service providers should carry all kinds of content at the same speed for the same price, as opposed to offering to carry some content under better terms in return for payments. Advocates for net neutrality, such as the Save the Internet Campaign, believe that this would be disastrous because it would allow internet companies to discriminate against certain sites or content, it would raise costs, and it would stifle innovation. Simplifying a bit, phone and cable companies would act in their own interest, and not in the interests of internet consumers. The market would have failed.

That may be. But if you click through to the “Take Action” page, the very first recommendation is to contact the FCC:

Net Neutrality is on life support. To save it we need to turn up the heat on the Federal Communications Commission and Chairman Tom Wheeler. We must stop the FCC from passing rules that would break the Internet and allow discrimination online. The agency needs to reclassify broadband Internet access as a telecommunications service, which would pave the way to long-lasting Net Neutrality rules.

Save the Internet doesn’t want phone and cable companies to control their own pricing policies because they think the folks who run phone and cable companies are scumbags. So they want the FCC to control internet service pricing policies. But here’s the thing: What is their reason for assuming that the folks who run the FCC aren’t also scumbags? Why do they believe that Comcast and AT&T will selfishly advance their own prosperity, but the FCC will benevolently protect the interests of ordinary people?

We know how government appointments are filled, and the process is not reassuring. Current FCC Chairman Tom Wheeler was a lobbyist for the cable television and internet industry and he appears to have been appointed in part because of his fundraising efforts on behalf of President Obama’s election campaign. That’s not a selection process that seems particularly designed to choose administrators based on their honesty, altruism, or appreciation for the needs of the citizens.

This is a problem that people on the political left tend to overlook as they continue to recommend more and more government intervention to combat the inequities of the free market in pursuit of social justice. People on the political right, on the other hand, are inherently skeptical of attempts to solve the world’s problems with “big government.”

Except when they aren’t. Which is to say that conservatives seem to forget all about these problems when it comes to the military and law enforcement.

There are some bad people in our society, bad actors, who lie, cheat, rob, rape, and kill, and we need to protect our society from them. So we create a system of justice, with police departments and prosecutors and courts and prisons, and we give it money and special powers to investigate crimes and punish offenders. But there’s a problem — one that I’ve started to think of as the fundamental problem of policing — which is that the people to whom we give this power are chosen from the same pool of humanity which produces the criminals. We thus face the challenge of designing a system of justice that will protect us from bad people even though parts of it will, at times, be run by bad people.

It’s not just the very bad people, however. The theory tends to assume that most people will behave selfishly most of the time, and there isn’t a whole lot of evidence that it’s wrong. This points to what I guess could be called the fundamental problem of government: What’s the best way to build a government given that its officials and functionaries are drawn from the same pool of humanity they are governing? I don’t have a precise answer, but I’m pretty sure that giving them gobs of power with little accountability is a bad idea.

That’s what I was thinking when I read Andrew Cohen’s column — that this was about policy and trust, not a formal legal presumption — and I’m pretty sure it was what Radley Balko had in mind as well. I thought that’s what Cohen and Gideon had in mind too, but now that I’ve read Scott’s post, I’m not so sure.

Frankly though, I’m not so sure what Scott has in mind either, because bits like this don’t sound like he’s talking solely about the legal issues:

We tend to favor survival, and that relies on bridges not falling down and traffic signals that prevent the selfish jerk in the Esplanade from t-boning the Prius.  We go to sleep at night because we believe the police are out there preventing some really bad dude from breaking into our homes and slitting our throats.

Trust is a valuable thing to have, because it saves us a lot of trouble. You only have to look at a few broken-down third world countries to see what happens when nobody can really trust anyone else. But it’s something that has to be built up and maintained. You can’t just make policy founded on the hope that everyone can be trusted to act in good faith.

There is nothing wrong with the presumption of good faith, and our nation would cease to function without it.  What is wrong, and deeply wrong, is that those empowered to decide whether the presumption is rebutted lack the fortitude to serve the public, honor the Constitution and protect society.

In other words, we’re trusting too much that those who are “empowered to decide” will act in good faith.

2013 Road Trip Report – Part 1: The Road to Toledo

Chicago Traffic

It looks like I never got around to posting about last year’s summer road trip. Since it’s getting close to time for my next one, I figure I better post something. Excuse me if I ramble a bit…

I started the trip the way I always do, working through checklists of things to pack — clothes, meds, toiletries, still camera, video camera, computer — and checklists of everything I have to do before leaving — fill cat food and water bowls, vacuum, turn off all computer speakers, unplug office phone, put TV remote where cats can’t step on it, thermostat set, alarm clock off, all lights off, webcams on so we can see the cats from wherever we are.

The Chicago Skyway Bridge over the Calumet River into Indiana
Chicago Skyway Bridge

I had hoped to get going relatively early in the day so I could make it through Chicago as quick as possible, but I didn’t get going until the afternoon traffic started to get heavy and slow, and it took about an hour and a half to reach the Skyway Bridge into Indiana.

As is my tradition, as soon as I crossed the border into Indiana, I stopped at the Gas-a-Roo to fill up on cheap gas.

The Valero Gas-A-Roo in Hammond, Indiana
Gas-A-Roo

My next stop was also part of my road-trip tradition: Wagner’s Ribs, about 25 miles down the road in Porter, Indiana. I met with my friends George and Rich who I used to work with back in the ’90′s.

Rich lives in Chicago’s western suburbs, and shortly after we sat down he got a call from home telling him that heavy storm had hit his area, and his house had lost power. A half hour later, he got a call saying the storm had passed. He checked the weather radar, and it showed a narrow but intense squall line passing over Chicago. Since wind speeds were about 30 miles per hour, we knew the storm would be on us in half an hour or so. Sure enough, shortly after we got the check, a sudden heavy rain started to fall and the winds picked way up. The trees outside were rocking back-and-forth in the heavy winds and Wagner’s lost power twice.

The storm blew over in half an hour, but we decided to stick around a little longer. The weather pattern was headed east at 30 miles per hour, and I would soon be headed east at 70 miles per hour, which meant I’d catch up to it before reaching the hotel if I left too soon. Since the rain had kept the dinner crowd away, nobody minded that we kept the table.

Finally, with the storm an hour or so ahead of me, I left and headed east toward my first night’s stop. Actually, I first drove to a truck stop and got some snacks for the road — more delaying — before hopping on I-80 eastbound. By continuing to make gratuitous use of rest stops, I managed to keep the storm out in front of me, only occasionally getting sprinkles on the windows before reaching my hotel, the Hawthorn Suites by Wyndham in Holland, Ohio, on the outskirts of Toledo.

It took two trips to carry all my bags into the room, which turned out to be a full extended stay suite. My room had a full kitchen, complete with full-size refrigerator, kitchen sink, microwave, electric range, and cabinets full of glassware, china, and silverware. I didn’t need any of it, but the rate had been really good.

Hawthorn Suites by Wyndham in Holland, Ohio
Hotel Room

I had brought some left over Ledo’s pizza in the cooler, and I ate some of it out of a plastic bag for a late night snack. I could have actually poured my Diet Coke into a glass and eaten left-over Ledo’s pizza on a plate, but that just seemed excessive.

I got on the hotel WiFi — only after a call to the front desk to get the password — to check my mail and surf for a bit, but I was tired from the long day, so after about an hour I just plopped down on the bed right on top of the covers and fell asleep in the nice cool room. I woke up freezing in the middle of the night and had to crawl under the covers.

Update: Part 2 is up.

Awaiting the List

Journalist Glenn Greenwald has announced plans to publish his final big leak from the Snowden files: A list of U.S. citizens that the NSA has spied on. Naturally, this raises a very important question: Am I on the list? ‘Cause it would really help my badass libertarian rep if I was. I’m just beside myself with excitement!

Truthfully, I doubt they’ve ever spied on me, except to the extent that they’ve spied on everyone, such as phone call metadata. Actually, I’m kind of hoping that the list will run to hundreds of millions of people — damned near everyone with a digital footprint. That would make the NSA’s contempt for privacy pretty damned clear.

But if the list is more exclusive than that, I doubt I’ve drawn their attention. However, I wouldn’t be surprised if a few of the people I know in the blogosphere have made the list. A couple of obvious candidates come to mind:

#1 by a mile is Mirriam Seddiq. She’s a Muslim criminal defense and immigration lawyer from Kandahar, Afghanistan. If the NSA isn’t watching her, they’re not paying attention.

Another likely candidate is Jamison Koehler. Jamison seems mostly harmless, but his wife Susan Burke likes to stir up some shit, and she travels overseas to do it.

Beyond that, I follow a bunch of criminal defense lawyers who probably make a lot of trouble between them — Mark Bennett, Norm Pattis, Rick Horowitz, PDgirl, Matthew Haiduk, Matt Brown, Gideon, the Squawk, the list goes on and on — but they mostly do state work, which I’m guessing wouldn’t draw a lot of attention from the national security types at the NSA. But maybe Scott Greenfield… He does federal work and used to represent drug dealers, and we know the NSA was feeding information to the DEA. Scott is also friends with Lynne Stewart, a defense lawyer who was prosecuted in connection with her defense work for some accused terrorists. If he had contact with her during that time, he could be on the list. Besides, it wouldn’t be the first time the feds spied on Scott.

After that, I don’t know. I’d like to think all us libertarians are on the government’s list, since we hate it so much — maybe Jennifer Abel for all the shit she says about the TSA or anyone at Reason because they despise both parties — but the truth is I suspect nobody in the government regards us as a threat. It kind of hurts my feelings.

(There is, of course, the hive mind that is Popehat. Between Clark’s libertarian ranting and Ken’s federal criminal work, maybe the hat made the list.)

The thing is, if the NSA is spying on libertarian writers like me, it’s an invasion of privacy in service to a witch hunt. That’s pretty bad, but it’s nothing compared to what it means if they’re spying on people like Mirriam Seddiq or Scott Greenfield or any of the other people for whom opposing the will of the government isn’t just a political leaning but their whole professional calling. And if the government has been spying on privileged lawyer-client communications, it raises a lot of disturbing possibilities.

I suppose it’s unlikely that anyone I know will make the list. But if they do, I expect they’ll be really angry.

Elliot Rodger’s Motive Says Very Little About Anyone Except Elliot Rodger

A young man named Elliot Rodger apparently killed six people Saturday in Isla Vista California. I say “apparently” because the story is new enough that it keeps changing. When I first heard it, he had shot six people dead, but now it appears that three of them were stabbed, according to a recent version of the story. Apparently most of his targets were women, although not all of them. The story is likely to change again by the time you read this. For that reason, I wouldn’t normally write about a story like this, since almost anything I say would be speculation, and it could turn out to be very wrong when a clearer story emerges.

Still, a lot of people are talking about it anyway — it’s hard not to, when it’s something so shocking — and I’d like to talk a little bit about what some of them are saying.

The first thing to note is that this is a confusing situation. A lot of people are emotionally upset by what happened, yet the story isn’t really clear yet. That’s a combination that is guaranteed to produce angry misunderstandings. People might say strange things just because they’re working from a different version of the facts than we are, which isn’t their fault (especially if it turns out their facts are correct and ours are wrong). They might also be repeating something they heard without thinking it through or trying to verify the truth of it. So for the first couple of days, if somebody says something that really pisses us off, we might want to cut them some slack and hold off on our angry responses.

And even when we don’t want to cut them any slack, we may still want to hold off on angry responses anyway. Some people are just trolls, saying outrageous stuff just to be outrageous and get a reaction. It’s best not to feed the trolls. (Although in some cases, you will probably want to keep an eye on them in the future. Geez.)

With that in mind, I’d like to talk about some of the discussion of the “cause” of Elliot Rodger’s killing spree. Most of the emerging discussion of his motive centers around a video he posted and a “manifesto” he sent out. I haven’t seen either of them, and I don’t want to, but apparently they’re quite misogynistic, and he literally threatens to kill a bunch of women. This has naturally lead a number of people to make pronouncements about the how Rodger’s killings reflect the misogyny of our society.

One immediate complication to that view is that, as far as I can tell, Elliot Rodger started by killing his male roommates, and he ended up killing more men than women. (He also wounded a lot of people, and the news reports don’t talk much about them, so he may have shot more women than men.) I’m not saying that he wasn’t a misogynist, but it’s probably not a sufficient explanation for his behavior. I’m assuming he has some type of mental disorder.

For that reason alone, it would probably be a mistake to take much of what Rodger says at face value. Furthermore, murderers are often not really reliable sources of information about their motives. Almost none of them say, “I killed because I’m a violent asshole.” They cast blame elsewhere — the victim usually, but also society in general, racial minorities, women, video games, porn, music lyrics…anything other than themselves. Sometimes this is a clear case of a manipulative personality looking for a way out, and sometimes it’s just something they’ve come to believe. They feel lonely, cut off, and rejected by the world, and they blame the world for those feelings, and they seek their revenge.

I’ve heard that Elliot Rodger was associated with the Pick-Up Artist (PUA) community, and some people have tried to use his killing spree as proof of the misogyny in the PUA community. This is spurious reasoning. Spree killers, whatever their motives, are very rare. However they fit into society, whatever communities they are associated with, they are far out at the end of the curve, and they tell us very little about the bulk of the people clustered in the center.

If you want to make judgements about the values of a community, you should base it on the values displayed by the bulk of its members, not by the crazy people on the fringe. Elliot Rodger is not proof of the misogyny in the PUA community. The PUA community is proof of the misogyny in the PUA community.

I’ve also heard that Rodger was a Men’s Rights Activist (MRA), and some people are arguing that his killing spree is proof of the misogyny in that community as well. Again, you can’t judge a group’s values by the behavior of its most extreme members. Judge the misogyny of the MRA community by the misogyny of the MRA community.

There are those who would argue that by portraying Rodger as a lone madman rather than a representative of our misogynistic society, I am minimizing the problem of violence against women. I would argue that the people who are holding Elliot Rodger out as an example of societal misogyny are distracted from the larger social problem.

Spree killers are a small part of the problem of violence against women. The larger problem is less spectacular and more mundane, so it gets less news coverage. Usable statistics are surprisingly hard to find via Google, but according to a study by the Violence Policy Center (based on the FBI UCR Homicide Supplement), in 2009 there were 989 women killed by their husbands or boyfriends. An additional 590 women were killed by other men that they knew. That is far more than are killed by spree killers in any year. Using those numbers as a statistical average, it probably means that on the day Elliot Rodger killed two women in his spree, another 2 or 3 women were killed by their husbands or boyfriends, and an additional 1 or 2 more were killed by some man in their life. And unlike Rodger’s shooting spree, that toll keeps repeating itself day after day after day. It may be a better place to focus our efforts.

(And if you think domestic violence gets little coverage or study, it gets even worse for violence against sex workers, but that’s another matter.)

At the end of the day, I’m pretty confident that Elliot Rodger was some kind of madman. He may have seen himself in a political context, as striking a blow for unloved men everywhere against women and other men, but that doesn’t mean he actually was, or that other men in similar situations are going to follow his example.

And for the record, whatever mental disorder he was suffering from, he’s out on the fringe there as well. People with mental health problems are generally no more violent than everyone else.

Don’t Disinvite, Just Don’t Invite

It’s graduation season again, which means it’s time for the usual round of news stories about controversial graduation speakers and the attempts by protestors to get them disinvited. For example, after protestors at Rutgers got Former Secretary of State Condoleeza Rice to back out of giving the commencement address, the normally wonderfully cynical P. J. O’Rourke went into full curmudgeon mode complaining about the kids these days and extolling Rice’s experience:

…she also served, from 1989 to 1991, as the Soviet expert on the White House National Security Council under President George H. W. Bush.

1989 happens to be when the Berlin Wall fell. I know, I know, most of you weren’t born, and you get your news from TMZ. A wall falling over can’t be as interesting as Beyonce’s sister punching and kicking Jay Z in a New York hotel elevator. But that 1989 moment of “something there is that doesn’t love a wall” (and I’ll bet you a personal karaoke performance of Beyoncé’s “Single Ladies (Put a Ring on It)” that you can’t name the poet who wrote it) had interesting consequences. Stop taking selfies and Google “Berlin Wall” on the iPhones you’re all fiddling with.

Condoleezza Rice was named National Security Adviser in December 2000, less than a year before some horrific events that you may know of. She became Secretary of State in 2005 during an intensely difficult period in American history (which your teach-in was not going to teach you much about).  And she saw the job through to the end of the fraught and divisive George W. Bush presidency, making moral and ethical decisions of such a complex and contradictory nature that they would have baffled Socrates, Plato, and Aristotle (of whom I suppose, perhaps naively, you have heard) put together.

You know what? Nobody gives a shit what Condoleeza Rice would have said at the Rutgers graduation ceremony. You know why? Because it was graduation day. All the exams have been taken, all the grades have been submitted. This material will not be on the test.

(O’Rourke goes on to make fun of Rutgers for being the 69th best-rated university according to U.S. News & World Report — so you know it must be true — and makes fun of a professor named Bell by nicknaming him “Jingle,” thus showing why he gets paid the big bucks while I toil here for free.)

Another of these articles comes from Stephen L. Carter, who has a sneering attack on oversensitive protestors in BloombergView:

In my day, the college campus was a place that celebrated the diversity of ideas. Pure argument was our guide. Staking out an unpopular position was admired — and the admiration, in turn, provided excellent training in the virtues of tolerance on the one hand and, on the other, integrity.

Your generation, I am pleased to say, seems to be doing away with all that. There’s no need for the ritual give and take of serious argument when, in your early 20s, you already know the answers to all questions. How marvelous it must be to realize at so tender an age that you will never, ever change your mind, because you will never, ever encounter disagreement! How I wish I’d had your confidence and fortitude. I could have spared myself many hours of patient reflection and intellectual struggle over the great issues of the day.

Look, if you’re arguing whether they’re right or wrong to protest, then your reflexive defense of free speech is missing the point. It’s just not the right occasion for controversial speakers and the “ritual give and take of serious argument.” I’m all for debate and new ideas, but by graduation day, you’ve kind of missed the window.

(And how is that argument supposed to take place, exactly? It’s been a while since I graduated, but I’m pretty sure there wasn’t a Q & A session.)

When students at Smith College protested a scheduled commencement address by Christine Lagarde, Managing Director of the International Monetary Fund, she graciously withdrew from the event as college President Kathleen McCartney explains:

I regret to inform you that Christine Lagarde has withdrawn as Smith’s 2014 commencement speaker in the wake of anti-IMF protests from faculty and students, including a few who wrote directly to her. She conveyed to me this weekend that she does not want her presence to detract from the occasion.

“In the last few days,” she wrote, “it has become evident that a number of students and faculty members would not welcome me as a commencement speaker. I respect their views, and I understand the vital importance of academic freedom. However, to preserve the celebratory spirit of commencement day, I believe it is best to withdraw my participation.”

Lagarde understands what the people who scheduled her did not: Students have been working long and hard to get to that ceremony, and it’s supposed to be about them.

On the day I graduated with my Bachelor’s degree, my parents drove down to see me. Neither of them had been to college, so they were proud that they had been able to send me, and I was grateful for their support and encouragement. I was also pretty proud of myself. I had done well and earned a Bachelor of Science degree with High Honors, which at that point in my life was one of the most difficult things I had ever done. I remember showing them around the campus, talking about where I lived and where I did all my studying. They had brought along some friends of mine, and afterwards we went out to dinner at a nice restaurant.

Those are my memories of of graduation, and I think I can safely assume that many of my friends have similar memories. And I’ll bet few of us can remember what the guest speaker said. But thank God that whoever planned the ceremony didn’t bring in some controversial lightning rod of a speaker. Our commencement address was given by physicist Leon Lederman. I think he said something about education.

(Dr. Lederman won the 1988 Nobel Prize in Physics for developing the method he and two other physicists used to discover the muon neutrino. He was also the director of Fermilab for ten years. He was one of the biggest advocates of searching for the Higgs boson and he wrote the most well-known book about it, The God Particle. By reading that book, or some textbooks on particle physics, or really even the Wikipedia article on neutrinos or the Higgs boson, you can learn much more about the real important work of Leon Lederman than anybody learned from his commencement address.)

Meanwhile, Stephen Carter had something to say about the Rutgers situation as well:

Then there are your fellows at Rutgers University, who rose up to force the estimable Condoleezza Rice, former secretary of state and national security adviser, to withdraw. The protest was worded with unusual care, citing the war in Iraq and the “torture” practiced by the Central Intelligence Agency. Cleverly omitted was the drone war. This elision allows the protesters to wish away the massive drone war that President Barack Obama’s administration has conducted now for more than five years, with significant loss of innocent life. As for the Iraq war, well, among its early and enthusiastic supporters was — to take a name at random — then-Senator Hillary Clinton. But don’t worry. Consistency in protest requires careful and reflective thought, and that is exactly what we should be avoiding here.

This just proves my point. You invite someone like Condoleeza Rice, and next thing you know, the political pundits like Carter are insulting your community and somehow linking your graduation ceremony to an attack on Barack Obama and Hillary Clinton.

It gets worse. After Haverford College students protested against former University of California (Berkeley) chancellor Robert J. Birgeneau, leading to his withdrawal, his replacement speaker decided to make a stink about it:

William G. Bowen, former president of Princeton and a nationally respected higher education leader, called the student protestors’ approach both “immature” and “arrogant” and the subsequent withdrawal of Robert J. Birgeneau, former chancellor of the University of California Berkeley, a “defeat” for the Quaker college and its ideals.

So he insulted the Haverford and its students, and it made the newspapers. Awesome job, whoever planned the ceremony. Are you happy with what you’ve done to your graduation this year? Is this what you wanted?

Also, as with O’Rourke, Bowen seems not to understand how commencement works:

“I am disappointed that those who wanted to criticize Birgeneau’s handling of events at Berkeley chose to send him such an intemperate list of “demands,” said Bowen, who led Princeton from 1972 to 1988 and last year received the National Humanities Medal from President Obama. “In my view, they should have encouraged him to come and engage in a genuine discussion, not to come, tail between his legs, to respond to an indictment that a self-chosen jury had reached without hearing counter-arguments.”

Yeah, no question, sending lists of demands is a douchebag thing to do. But how the hell does Bowen think they’re going to “engage in a genuine discussion” during the commencement speech? Does he even hear what he’s saying?

In her letter to the Smith community, President McCartney doesn’t do any better:

I want to underscore this fact: An invitation to speak at a commencement is not an endorsement of all views or policies of an individual or the institution she or he leads. Such a test would preclude virtually anyone in public office or position of influence. Moreover, such a test would seem anathema to our core values of free thought and diversity of opinion. I remain committed to leading a college where differing views can be heard and debated with respect.

Again, “debated”? On graduation day? This is feel-good nonsense. It’s an admirable defense of free speech principals, but if your graduation ceremony has become the subject of a rancorous debate, you’ve kind of already ruined it.

I understand the point McCartney is trying to make. It’s okay to object to speech you don’t like, and it’s okay to speak out and protest against it. But it’s not okay to silence speech you don’t like, and it’s not okay to deprive other people of their right to hear speech you don’t like. Everybody say it with me: The best remedy for bad speech is good speech.

Many colleges and universities are run by people who feel it’s their role to challenge students’ preconceptions and present them with a wide range of viewpoints and opinions. I think those are perfectly valid values for an institution of higher education. It makes a lot of sense to schedule speakers who are unorthodox, who represent unpopular ideas, and who make people uncomfortable.

(Although, if I seem less than completely enthusiastic, it’s because I am annoyed by the amount of importance placed on non-curricular stuff like this. I suppose plenty of people go to college to “have experiences” and “encounter other ways of being” or whatever. But I went to school to learn shit. My degree was in Computer Science, and I spent all my time learning algorithms and data structures and the discrete mathematical structures that underlie so much of computing. I learned computer graphics and databases and operating systems. I spent long hours learning computer architecture and the deep mysteries of compilers, and as hard as some of it was, it was also absolutely fascinating. If you’re really interested in the subjects you’re studying, there are worlds to explore.)

So if you want college to present students with controversial speakers, I’m all for it, and to hell with what a bunch of whiny protestors say. But can we please stop pretending that the graduation ceremony is a crucial moment in students’ education? You’ve had four long years to mold their minds and shape their way of understanding the world. You’ve had plenty of time for all the challenging speakers — or better yet, challenging classes — you could possibly want. If you haven’t done the job right by graduation day, it’s too late.

And if you have done the job right, what’s the point of having a controversial speaker? What more good could it possibly do? The students have done everything you’ve asked for four years and now they just want to celebrate with their friends and families. After all they’ve been through to get there, making many of them sit and listen to someone you know they’ll find offensive is kind of a dick move.

(By the way, you may notice something missing from all these articles complaining about protests against commencement speakers: Quotations. Condoleeza Rice, for example, has about a dozen honorary doctorate degrees, so you know she’s given commencement addresses before, yet for all that P. J. O’Rourke extolls her virtues and accomplishments, he never quite gets around to giving any examples of the awesome things she’s said at any of her other speeches.)

Finally, if there are protests, and your speaker backs down, it’s only going to draw the kind of ugly media attention that Haverford, Smith, and Rutgers have been getting. All you will have accomplished is making your college look stupid and marring the day for your graduating students. Again, it’s wrong that the protestors are able prevent someone from being heard. But it was a predictable consequence that could have been avoided if you had kept the students in mind and chosen a speaker who would complement the occasion instead of dominating it.

Crime and Incentives

In response to my post about some of economist Gary Becker’s views on crime, “russ” leaves a comment with a couple of interesting points:

I would think the failure of the war on drugs is the evidence AGAINST Becker’s idea that increased punishment reduces crime.

Just because criminalizing drugs hasn’t made them go away completely doesn’t mean that criminalization has no effect at all. After all, we’ve seen what happens when criminalization is undone: Certainly more alcohol was sold after prohibition was repealed than while it was in force, and the home-brewed beer industry exploded after that was legalized. I assume that criminalization is suppressing a lot of drug sales and consumption that would be occurring if drugs were legalized.

Becker is just saying that if you punish people for engaging in certain behaviors, people will be less likely to engage in that behavior. It’s just another variation of the general economic assumption that people will respond to incentives. Since Becker started studying the problem, economists have generally discovered that criminals are making the same kinds of risk/reward decisions as everybody else does. In other words, the movie Trading Places has a lot of truth to it: If you took a bunch of Wall Street bond traders and stuck them in the same circumstances as poor, uneducated inner-city minority youths, they would make many of the same life choices, and some of them would choose the high-risk/high-reward life of a crime. If you changes people’s incentives, you change their behavior. It happens all the time.

Of course, maybe the problem is that only those with a vested interest in prosecution consider the drug trade a crime. After all, non-fraudulent transaction between willing buyers and willing sellers are not really crimes.

I’m right with you there, although it’s more than just police and prosecutors and prison guards lining their pockets. There’s some genuine social disapproval of a lot of consensual crimes. People are busybodies, and they assume that anything that they don’t like is probably not important.

The death penalty was supposed to deter crime but there is no evidence that it has. Perhaps Becker’s theory that crime is subject to a cost-benefit analysis only applies to theft/fraud crimes.

I’ve heard mixed reports about the effectiveness of the death penalty. Some studies find a deterrent effect, and others do not. I’ve heard that in those studies that have found an effect, much of it goes away if you drop Texas from the data set. On the one hand, that doesn’t prove the study is wrong — of course the results of a study will change if you cherry pick the data — but it’s interesting that it all depends on the state with the most executions. Perhaps the deterrent effect doesn’t show up unless you execute a lot of criminals.

More generally, I believe studies have shown that deterrence effect is not as sensitive to the severity of the punishment as it is to the immediacy and certainty of the punishment. This would be consistent with the idea that the criminal personality includes a high tolerance for risk and that criminals discount the future heavily. So if we want to fight crime, it’s more important to make the punishment swift and sure than it is to make it harsh.

Gary Becker on Crime

One of the giant minds of economics, Gary Becker, passed away on Saturday. Among other things, he and Kevin Murphy were pioneers in the idea of rational addiction, which I wrote about last year. That was just one example of his approach to applying the tools of economic thinking to a wide variety of other fields such as discrimination, family life, politics, and crime.

It’s the last field which attracts the attention of Kent Scheidegger at Crime and Consequences, who quotes from Becker’s biographical sketch at the Library of Economics and Liberty:

Not even crime escaped Becker’s keen analytical mind. In the late 1960s he wrote a trail-blazing article whose working assumption is that the decision to commit crime is a function of the costs and benefits of crime. From this assumption he concluded that the way to reduce crime is to raise the probability of punishment or to make the punishment more severe. His insights into crime, like his insights on discrimination and human capital, helped spawn a new branch of economics.

This meets with Scheidegger’s approval, and he goes on to comment,

The latter point seems so obvious now, yet the people running around proclaiming themselves “smart on crime” today apparently don’t get it.  The genuinely smart people do.

I’m not sure what Scheidegger means by “smart on crime,” but I have no doubt that Becker said something like that, and I’m pretty sure I agree with him. One of the basic rules of economic thinking is to assume that people respond to incentives. That seems like an obvious thing to say, but economists treat it almost as an axiom of human behavior. They assume that people will respond to incentives at all times, in all places, under any circumstances. Always.

This is obviously something of an oversimplification, of course, but in decades of testing the theory that people respond to incentives against observations of the real world, economists have rarely had cause to regret the assumption. So of course economists like Becker believe that punishing people for committing crimes will encourage them to commit fewer crimes. Anything else would violate one of the most important rules economists have about human nature.

It’s too bad, though, that the folks at Crime & Consequences (especially Bill Otis) don’t take to heart some of Gary Becker’s other writing. For example, economists generally assume that when you make a decision about how to live your life, you will do so with the intent of improving the quality of your life. And since you have to live with the results of your decision, you have more of an incentive to make the right decision than anyone else.

Further, unless you have some sort of mental incapacity (due to age or infirmity, say) you also have more information than anyone else about exactly what will make you happy. It therefore follows that, assuming the goal of public policy is to maximize our combined quality of life, the best approach is to allow each person to make as many decisions about their own life as possible, with the important limitation that they must also allow everyone else to do the same.

Basically, the more people are free to choose, the more they will choose to make the world better. And rather a lot of economists see no reason not to extend this reasoning to include illegal drugs: If you choose to consume them, it must be because you believe they will improve the quality of your life, and nobody has more information or a better incentive to make that consumption choice than you.

Although not the most radical of anti-prohibition economists, Gary Becker had this to say:

The 40 year-old American “war on drugs” has been a colossal failure. No progress in dealing with drugs can be expected until that basic truth is recognized. Every conceivable approach has been tried to help the war succeed, such as long prison terms for persons convicted of selling or using drugs, trying to prevent drugs from entering the US from Mexico and other countries, and confiscating huge quantities of drugs (remember The French Connection?). At some point all wars that fail are terminated, and alternative approaches explored.

The evidence from Portugal, a country that decriminalized all drug use in 2001, offers some support for the claim that decriminalization of drug use will reduce addiction to drugs. A 2010 study in the British Journal of Criminology concluded that decriminalization in Portugal reduced imprisonment on drug-related charges, only slightly increased, if at all, drug experimentation among young persons, increased visits to clinics that help end drug addictions, and reduced deaths from drug overdoses.

The retreat from the war on drugs has already begun. The question is whether it will be a sensible retreat with systematic changes in the law toward decriminalization and legalization of drugs, or a disorganized retreat that leaves users and sellers of drugs with unclear legal status.

Becker and other economists have been saying stuff like that for a long time. It seems inconsistent to believe that people will change their behavior as a rational response to punishment in order to improve the quality of their lives, and yet to assume that observed behavior such as drug consumption is not also a rational response that improves the quality of their lives.

Stealth In the Parking Lot

I did some grocery shopping at lunch today, and on my way back to my car, as I was threading my way through the parking lot, an empty car next to me started rolling forward. Several thoughts ran through my head: Was any part of it going to hit me? What was in it’s path? Other cars? People? Could I catch up to the driver’s door and try to get in to stop it? –

As I was thinking that last thought, I glanced at the driver’s seat again and realized that there was actually a driver after all. It was a small woman wearing what I think was a black niqab and dark glasses.

Man, it’s like they’re frickin’ ninjas

How Bill Nye Debates Creationism

When word got around that Bill Nye (“The Science Guy”) was going to debate Ken Ham, the founder of the Creation Museum, I was skeptical because just understanding the science of evolution is not good enough, you also have to understand and be prepared for all the creationist criticisms of evolution, and most scientists have no reason to learn about those.

Among other things, I wrote:

In other words, in order to debate the subject of evolution, it’s not enough to learn all about evolution. You also have to learn all about creationism, and how creationists think about evolution. You have to be familiar with things like Jonathan Wells’s anti-evolution Icons of Evolution and Alan Gishlick’s explanation of why it’s wrong. You have to absorb the creationists’ way of thinking about evolution in order to explain your point to them in a way they will understand.

And that’s just not something I’m willing to spend a lot of my time on. And unless Bill Nye has been secretly setting up Ken Ham for this debate for months, it’s not something he’s spent a lot of time on either.

As it turns out, Nye didn’t quite set Ham up, but as he explains in a Skeptical Inquirer article about his view of the debate, he did do a lot of prep work:

I consulted the world’s foremost authorities on arguing or debating with creationists. I flew to Oakland, California, and consulted with the famed, venerable, and formidable Genie Scott, along with Josh Roseneau, and the staff at the National Center for Science Education (NCSE). They schooled me on what to do in great detail. Later that week, I managed to arrange a lunch with Don Prothero and Michael Shermer, two hardcore skeptics. Don even debated the notorious Duane Gish back in the 1980s. All of these people were wonderfully helpful. They were very patient with me and helped me figure out what to say and, especially, what not to say. They said to prefer the word “explanation” to the word “theory,” for example. I just can’t thank them enough.

I haven’t seen the debate, but it sounds like he also managed to pull off a strategy I’ve seen work before, which is to steer the debate so it isn’t constantly about the attacks on the theory of evolution, but rather a discussion of what the alternative might be. I’ve seen forum discussions where creationists were hammered by repeated requests to “state the theory of creationism.” After all, if they think they’ve got a better theory, they should be able to explain what it is and why it does a better job of explaining the physical evidence of the real world.

Ken Ham’s theories are well known, so Nye didn’t have to challenge him to describe them, which allowed Nye to address them directly and point out why they were deficient:

If you take the time to watch, Mr. Ham repeatedly mentioned or droned on about the less-than-a-handful of scientists who subscribe to the weird idea that the Earth is crazy (or crazily) young. When my turn came, I talked about geology and the Grand Canyon. Creationists from the United States, or in Australian-born Ham’s case, in the United States, just can’t get enough of the Grand Canyon. I pointed out that not a single fossil form had tried to swim from one rock layer to another during his purported worldwide flood, only 4,000 years ago. Were we to find such a fossil, it would utterly change geology and our scientific worldview. I did a bit of engineering, pointing out that no wooden boat has ever been built as big as Ham’s imagined ark. In fact, the big ones that were built were smaller and generally twisted apart— and sank (for this I used a chart from Ham’s website). I made it personal where possible. The Nyes are an old New England family, many of whom sailed wooden ships. I also spoke of decades in the Pacific Northwest, where I observed the enormous boulders washed westward by ancient collapsing ice dams in what is now Montana.

If kangaroos got off the ark in Mesopotamia, why aren’t there kangaroos in Laos? (Again, I used a map from Ham’s very website.) Then, from geology: If I find ice that has evidence of 680,000 layers of summer-winter cycles, how could the Earth be any younger? Thanks to Don for that. How can there be 9,500-year-old trees if the Earth is only 6,000 years old? And so on.

Apparently, the whole debate went like that.

Those of you familiar with creationism and its followers are familiar with the remarkable Duane Gish (no longer living—at least as far as we know). His debating technique came to be known as the “Gish Gallop.” He was infamous for jumping from one topic to another, introducing one spurious or specious fact or line of reasoning after another. A scientist debating Gish often got bogged down in details and, by all accounts, came across looking like the loser.

It quickly occurred to me that I could do the same thing. If you make the time to watch the debate (let’s say for free at http://billnye.com—wink, wink), I hope you’ll pick up on this idea. I did my best to slam Ken Ham with a great many scientific and common sense arguments. I believed he wouldn’t have the time or the focus to address many of them.

So I guess I was mistaken to worry about how this would turn out. From the accounts I’ve heard, it sounds like Nye came across very well and pretty much won the debate.

Death Doesn’t Have to Knock: A Modest Proposal

In the past few years, the states have been facing increasing difficulties obtaining the drugs they need to carry out their death penalties. This is in part because manufacturers have been refusing to make the drugs available for use in executions. So instead of using the traditional three-drug sequence, states have been experimenting with new drugs. However, since they don’t want manufacturers to stop selling them the drugs, states have begun keeping their execution protocols a secret.

And perhaps because of these changes, an execution in Oklahoma went disturbingly wrong:

McALESTER, Okla. — What was supposed to be the first of two executions here on Tuesday night was halted when the prisoner, Clayton D. Lockett, began to writhe and gasp after he had already been declared unconscious and called out “oh, man,” according to witnesses.

A medical technican inserted the IV needle and then the the first drug, a sedative intended to knock the man out and forestall pain, was administered at 6:23 p.m. Ten minutes later, the doctor announced that Mr. Lockett was unconscious, and the team started to administer the next two drugs, a paralytic and one intended to make the heart stop.

At that point, witnesses said, things began to go awry. Mr. Lockett’s body twitched, his foot shook and he mumbled, witnesses said.

At 6:37 p.m., he tried to rise and exhaled loudly. At that point, prison officials pulled a curtain in front of the witnesses and the doctor discovered a “vein failure,” Mr. Patton said.

Without effective sedation, the second two drugs are known to cause agonizing suffocation and pain.

Lockett eventually died, but that didn’t stop the criminal coddling defense bloggers (e.g. Gamso, Gideon, and Greenfield) from wringing their hands and calling for abolition of the death penalty.

Giving up is for losers. What I wanted was someone who could rise to the challenge of killing criminals. Naturally, I turned to the only name in blogging when it comes to sane, measured commentary about the death penalty, Crime and Consequences. I discovered that Kent Scheidegger had this to say:

As I have noted several times on this blog, lethal injection was a mistake from the beginning.  We should have kept the gas chamber and merely used a different gas.  Carbon monoxide, for example, is painless.

We have lethal injection for the time being, though, and we should make it effective.  Congress should act promptly to lift the restrictions on importation of the needed drugs and to outlaw manufacturers’ restrictions on resale of them.

Hmpf. I guess Scheidegger isn’t as much of a conservative as I thought. Not if he wants to limit manufacturers’ ability to set the terms and conditions of sale of their products in the free market. His closing paragraph just confirms his new namby-pamby liberal leanings:

We should do what we can to minimize pain in executions, but we should never forget that even in the worst execution what the murderer suffers is a tiny, tiny fraction of the suffering he chose to inflict on the victim.

“Do what we can to minimize pain in executions”? I visited C&C because I was looking for the hard-boiled law-and-order view, someone who would rain down hell upon the sinners. And he’s worried about minimizing pain? What a pussy.

So I set about searching for another solution. Surely someone among the hundreds of bloggers in my feed reader must have a friggin’ solution for the problem of how to execute people when the old tried-and-true drugs are no longer available. But try as I might, I couldn’t find anything useful.

In a desperate effort, I even visited The Watch, written by noted law enforcement expert Radley Balko, whose wonderful book Warrior Cop was such a loving tribute to the the brave officers who fight the war on drugs. He mentioned the Lockett execution in passing, but he had no solutions either. My heart began to fill with despair.

And then it hit me…

The states don’t need to find a new drug protocol to execute people. There’s another way states can kill people. It’s simple, easy, and effective. Every state already has the mechanisms in place, and they’ve been killing people with them for years. When it’s time for a prisoner to be executed per a judicial order, all they have to do is have a SWAT team stage a no-knock raid on the death chamber!

Just think of it: A few hours before the appointed time, the warden could call one of the local multi-agency drug interdiction task forces and leave an anonymous tip that the condemned individual was selling pot, giving the address of death row and the time when the inmate was expected to be there. The SWAT team would show up, lob flash-bang grenades into the room to stun the witnesses, kick down the door to the chamber, yell at the guy strapped to the gurney to get down on the floor, and when he doesn’t, empty their weapons into his center of mass.

Then the SWAT commander could complete the ritual by pulling a small baggie of crack out of his back pocket and announcing that police had “discovered salable quantities of narcotics at the scene” to reassure spectators that the bad guy got what he deserved.

No Need for the Truth Police

At the very liberal Addicting Info website, Justin Acuff is upset that politicians might be lying, and he wants the government to do something about it:

There’s a first amendment case going in front of the Supreme Court right now that’s very, very dangerous. Why? Because it might allow religious opinion to become legal fact, corrupting the intent of our constitutional rights, if not the specific wording.

Actually, Acuff is concerned the Supreme court might overthrow the ability of election commissions to control speech about politicians:

The Susan B. Anthony List (SBA List), an anti-choice and anti-family planning group, is suing because they believe they have a right to publicly advertise lies if they have sufficient reason to hold the advertised opinion. Paradoxical, yes, but if you’re familiar with American culture, you’ll completely understand. Cognitive dissonance and bold denial in the face of proof are defining characteristics.

The specific issue at hand is the 2010 campaign of Democratic former Rep. Steve Driehaus, a pro-life moderate in Ohio. Because he was running in Ohio, Ohio’s “false statements” law applied. Many states have an equivalent law. The idea is that stopping political ads from outright lying might be a reasonable restriction of free speech, in order to protect our democratic process. Probably a good plan, and not just for elections — after all, an appellate court has previously ruled that media sources, such as Fox News (the specific agency in the case), have the right to lie.

Granted, it’s bad that politicians lie. But you know what’s worse than allowing politicians to lie? Allowing politicians to decide what people are allowed to say about politicians. Ohio’s law against false statements in a political campaign is enforced by the the Ohio Elections Commission, which is a politically appointed body, that has been used to press “false statement” charges against political candidates attacking incumbents and against people protesting Tax Increment Funding. Are we really supposed to believe they’re going to keep mainstream politicians honest? Or are they just another way to keep small players out of the field of politics?

The SBA List was upset they weren’t allowed to advertise things that weren’t true. After all, Driehaus supported Obama’s healthcare agenda, and they didn’t. So, they wanted to put up a bunch of billboards and use radio ads to blast Driehaus, a self-proclaimed pro-life candidate, as supporting a program that includes taxpayer-funded abortions. Except…the ACA, Obamacare, does not fund abortions. It’s actually illegal for the federal government to fund abortion. Instead, the ACA has private insurers offering abortion coverage under unique rules.

And as he just demonstrated, this is easy enough to explain to anyone who was fooled by the lies and who wants to learn the truth. You don’t need a special truth commission to rule on it.

Facts matter. Especially when it comes to democratically electing leaders. Without an educated, informed populace, there can be no progress in democracy.

Of course fact matter. And if SBA List is misrepresenting the facts about the way abortion is treated under the Affordable Care Act, it’s important to correct them, and it’s important to point out that they are a bunch of liars who can’t be trusted. But there’s a world of difference between responding to political opponents by calling out their lies and responding to political opponents by suppressing their speech.

It’s not like these kinds are laws are going to be used evenly across the board. During the long course of a political campaign, a lot of people will say a lot of things, and some of those things will be wrong. And despite the supposed goal of getting the lies out of politics, there aren’t enough investigators on the Ohio Election Commission to investigate every lie that is told during an election season.

That means that the commission will have to engage in selective enforcement, picking and choosing among all the lies to decide who they want to go after. Does anybody think that choice won’t be influenced by politics? My guess is that lies told by (or on behalf of) influential mainstream candidates will go unchallenged, because the political hacks on the election commission wouldn’t want to anger anyone who could hurt their chances of collecting a nice state pension. On the other hand, the commissioners will have nothing to lose by nitpicking fringe candidates and small special interest groups that are a thorn in the sides of candidates from both parties.

And let me point out something that every power-mad would-be censor seems to ignore: You may have the power now, but someday it will be your enemies who are in control of the power. Today the commission might be targeting a right-wing pro-life group, but tomorrow a different commission could be controlled by the other side, and it could be some left-wing cause that’s in the crosshairs. For example, I’ve heard a lot of gun control advocates say things that just aren’t true: They get confused about firearms technology, they misstate the current firearms laws, they use incorrect statistics, they make unsupported claims about things the NRA does, and they mischaracterize pro-gun arguments. Will the people demanding the SBA List be silenced have the same hardball attitude about “false statements” when a Republican-controlled election commission goes after a grassroots gun control group and runs them out of business with legal expenses?

I’m not defending the SBA List or the lies they are tell. But giving politicians the power to control political speech during an election is not something that’s good for democracy.

SORNA Challenge Update

Last summer, I expressed my doubts about scientific aims of the SORNA Challenge. By asking for proposals for “innovative” ways to measure the costs and benefits of the Sexual Offender Registration and Notification Act, I felt that the National Institute of Justice was implicitly admitting that the widely accepted methodologies of sociology, criminology, and economics wouldn’t give them the answers they were hoping for.

Also, the SORNA Challenge was using a very broad definition of the social benefits of SORNA, but limiting costs only to those directly incurred by the government, which could make SORNA look much more beneficial than it really is, if people using the study were not careful in interpreting the results.

I decided to check up on how the Challenge was going, and it turns out to be a bust:

We would like to thank everyone who submitted an idea under this Challenge.

We know our Challenge questions are tough, and in this case, no submission met the Challenge, so we will not award a prize.

We will continue to collaborate with the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking to address this important question.

That’s probably for the best.

Jim Ardis and the Abuse of Power

Via Radley Balko comes more narcissistic whining from Jim Ardis, the mayor of Peoria, Illinois, who is rapidly becoming famous for sending his pet cops to raid the house of someone who ran a parody Twitter account in his name. Nick Vlahos of the Peoria Journal Star reports that Ardis doesn’t seem to think he did anything wrong:

Ardis defended his actions, which led to search warrants, a police visit to a West Bluff residence and the arrest of one occupant on a marijuana-possession charge.

He said the profane tweets, on a Twitter account created by Peoria resident Jon Daniel, could not be tolerated. That was true even after the account was re-labeled as a parody and was deactivated.

“I still maintain my right to protect my identity is my right,” Ardis said in an interview with the Journal Star before the council meeting.

“Are there no boundaries on what you can say, when you can say it, who you can say it to?” Ardis said. “You can’t say (those tweets) on behalf of me. That’s my problem. This guy took away my freedom of speech.”

Peoria City Council member Jim Montelongo pretty much nails it:

Montelongo said the episode represented an abuse of Ardis’ authority, as well as the police department’s.

“There was too much power of force used on these pranksters,” said Montelongo, the 4th District councilman. “It made it look like the mayor received preferential treatment that other people don’t get or will never get.”

That’s exactly right. Ardis is abusing his mayoral power when he uses it in service of his personal needs. In some ways, it’s no different from when a business executive brings his wife along on a trip and uses the company account to pay for the ticket. What makes it worse, of course, is that Ardis’s little power trip resulted in an armed raid on someone’s house and suppression of free speech.

As an aside, Radley brings up a good point:

Yesterday, Illinois State’s Attorney Jerry Brady announced that he would not seek criminal charges against the man who ran a parody Twitter account purporting to be Peoria, Ill., Mayor Jim Ardis. That’s because there is no state law against impersonating someone online. (Even if there were, it’s likely that the Twitter account itself would fall under the First Amendment protections for parodying public figures.)

[...]

We’ve already discussed Ardis’s power complex issues here. But that isn’t the only troubling part of this case. It would also be interesting to hear the explanation as to why Judges Kirk Schoebein, Lisa Wilson and Kim Kelley all signed off on warrants to investigate a crime that doesn’t exist. And why the police then executed those warrants.

The warrants reportedly listed drugs among the items to be searched for — based on some posted pictures of drug paraphernalia — but they also listed computers because of the impersonation issue, which seems like a problem.

Look, there are a lot of parodies online, and the targets usually just learn to live with them, like adults. If somebody out there starts a fake Windypundit blog in my name, I might be able to do something about it under intellectual property law (although not if it’s purely parody, a well-protected speech right), but there’s no way I could get the police to go after them. Even when the person pretending to be someone else does so with malice and causes harm, the police are unlikely to get involved if there’s no straight-up crime like fraud or threats of violence. At least not unless there’s an ego-crazed maniac like Jim Ardis pressuring them to do his bidding.

Meanwhile, Ardis is apparently working from the sociopath playbook and blaming everyone else for his problems:

In his pre-meeting interview, Ardis said he believed his complaint was handled no differently than anybody else’s would be. He said he didn’t orchestrate the police investigation, nor the search-warrant process.

“That’s a heck of a lot more power than any mayor I know,” Ardis said.

“My guess is as far as the judge is concerned, it doesn’t matter if it’s the mayor. They’re looking at the substance. Why would they allow something without a foundation? That’s the core of everything they do.”

Ardis said the situation provides an opportunity to discuss the proper limits of commentary on social media. He also said the news media is responsible, in part, for the problem.

“You’re the ones responsible for getting full information, but not to spin it in the way you want to spin it,” Ardis said to a Journal Star reporter. “To make us look stupid.

“It’s your responsibility to put actual information out there and cover both sides. Not to opine. And that didn’t happen. Clearly, that didn’t happen.”

Blaming the media is standard practice, of course, but I’m kind of in awe of how quickly he turned on the people around him. He may have pressured the cops into retaliating against the author of the parody, but once it started blowing up on him and attracting media attention in a bad way, he had no problem throwing them under a bus, along with the judge who so helpfully approved the bogus search warrant.

An Argument From Envy

Over at In These Times, United Steelworkers president Leo Gerard has an opinion piece in which he purports to explain “Why the GOP Really Fears Minimum-Wage Hikes.”

Republicans in America suffer a crippling anxiety. It’s the terrible fear of corporations paying poor workers too much.

I don’t have any special claim to understanding why Republicans do the things they do, but this is at least plausible, in the sense that Republicans might be craven servants of business who want to prevent corporate owners from paying too much. Unfortunately, Gerard’s argument very quickly degenerates into lies and confusion.

The GOP is so afraid that the nation’s lowest wage earners will get a raise that Republican politicians across the country are working overtime to outlaw wages above $7.25 an hour for these workers.

That’s simply a lie. Nobody is trying to outlaw higher wages for workers. Under any of the laws Gerard describes, employers can pay employees as much as they want. What he’s complaining about is something different:

They’re passing legislation forbidding towns and counties from raising the minimum wage in their jurisdictions. Republicans insist: no pay bump for those raking in $15,080 a year!

That second sentence doesn’t follow from the first. From his own description, Republicans aren’t preventing workers from getting raises, they’re preventing small government units from forcing businesses to give workers raises. Businesses are still free to give pay bumps if they want to. They just can’t be forced to do so above and beyond the state minimum wage.

On the other side, however, there’s no amount of pay, perks, private jets, premium health plans and golden parachutes that Republican politicians believe could possibly be too much for a CEO.

As long as the corporate owners are okay with paying their CEO a crapton of money, I don’t see why it should be Republicans’ business. Or Leo Gerard’s.

That Oracle CEO Larry Ellison took home $78,440,657 last year is completely reasonable in the minds of Republicans. That it would take a minimum wage earner 5,201 years to earn what Larry took out of his company for one 365-day period is, according to Republican-think, a morally correct calculation.

I don’t see what Larry Ellison’s paycheck has to do with minimum wage laws. I suppose you could argue that if Oracle wasn’t paying him so much, they’d have more to pay their workers, but Oracle has 120,000 employees, so that’s only about $654 per employee, which works out to about 33 cents per hour over the course of a year. I suppose that’s something, but it’s not much.

Also, the reason businesses pay minimum wage workers so little is because that’s the wage the workers are willing to work for. I don’t see how reducing the CEO’s salary would change the amount the workers are willing to work for, so I don’t see how it could raise their wages very much. (Wages are the result of bargaining, and having an extra $78 million in cash might hurt the business’s bargaining position a little, so there might be a small benefit, but as I said, it’s not much.)

That is why Republicans are working so hard to prevent Walmart and McDonald’s workers from earning more money while, at the same time, doing nothing but congratulating Time Warner Cable CEO Rob Marcus for grabbing $79.9 million for six weeks of work.

Same argument, same problems. In fact, the whole rest of the piece is pretty much that argument repeated over and over: Republicans aren’t raising the minimum wage, and corporate CEOs make too much money. Although some versions of the argument are sillier than others:

[...] they believe James A. Skinner is worth every penny of the $28 million McDonald’s paid him in 2012.

They don’t believe that there are a dozen Wharton School MBAs who could take his place tomorrow and, frankly, sell hamburgers just as well for say, $280,000 rather than $28 million. They don’t see how his excessive pay might affect dividends to shareholders or the cost of fries.

Look, I think a lot of CEOs get more money than they’re really worth because of agency problems in corporate governance — I think the people who decide CEO salaries are not acting in the best interests of the shareholders — but replacing them with a bunch of MBAs is just nutty. And if paying them so much doesn’t bother the shareholders, why should anyone else care?

There may be good arguments for raising the minimum wage, but this isn’t one of them. Gerard’s argument is little more than an appeal to envy.

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.